By Jon N. Hall
What can be done to rein in a runaway federal Judiciary?
It is thought that the only way to deal with misbehaving judges is impeachment. Impeachment is a difficult means of dealing with rogue federal judges, and it may be even more difficult once the House is taken over by Democrats in January. In 2006, however, the Yale Law Journal ran "Removing Federal Judges without Impeachment" by Saikrishna Prakash and Steven D. Smith, who argue that judges can be removed through other means than impeachment. They examine the history of the term "good behavior," as required by the second sentence of Article III:
Those who think judges may only be removed by impeachment might suppose that history reveals that "good Behaviour" was a term of art that meant something like "tenure for life defeasible only by impeachment." History actually proves that good behavior was independent of impeachment.
It doesn't seem right that one person in one branch of government can summarily stop the activities of another branch of government. Something needs to be done. But if impeachment is too much, then what's to be done about these lower-court judges throwing monkey wrenches into the executive? At the very least, appeals of these injunctions need to be greatly expedited.
Article III of the U.S. Constitution outlines the role of the Judiciary in our system. It's rather shorter than the first two articles, as it consists of 377 words and can easily fit on a single page. In the first sentence of Article III, we read that the "judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
Article III gives Congress the authority to create and to destroy "inferior courts."
Article III gives Congress the authority to create and to destroy "inferior courts." During our entire history, such federal courts have been abolished only twice. There was the Judiciary Act of 1801 that backed out the "midnight judges" of President Adams. Then there was the short-lived Commerce Court in 1913.
Except for the Supreme Court, it would seem that Article III gives the Congress carte blanche to abolish the entire federal judiciary.
If such a radical reorg of the judiciary seems "a bridge too far" right now, then perhaps Congress could abolish just the Ninth Circuit – just to send a message.