The Huge Problem with the Courts

Needed: A Debate over Jurisdiction and Power

This column often dwells on the existential threat that government bureaucracies pose to our republic—some say ad nauseam—and so it was natural to celebrate in this space last year’s U.S. Supreme Court ruling knocking down the Chevron doctrine, by which the courts were made to award “due deference” to federal agencies in contested regulatory cases.

In other words, the doctrine forced the courts to put their thumbs on the scales for the administrative state.

Dumping Chevron was a needed comeuppance for said administrative state. The question now is, when are the courts going to get their own comeuppance, which is also badly needed? The answer is, almost certainly not soon enough.

The courts are out of control both on the federal level and in Wisconsin, routinely usurping legislative powers to impose their will and way. For most of the last 50 years Congress has been sitting on the sidelines for some of the most important policy decisions facing the nation, so much so that the federal system of checks and balances has devolved into a power struggle between the executive and judicial branches, with Congress relegated to carrying water for one or the other or both.

But overreach by the courts is real, and only lately has it begun to receive the scrutiny it deserves. Much more is needed.

The latest example nationally was the Supreme Court’s decision this past week to reject a Trump administration request to lift an order by a federal district judge requiring the government to make close to $2 billion in foreign aid payments for work already performed. The administration has been seeking to freeze foreign-aid assistance.

The decision was 5-4 with conservative justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh supporting the administration, while justice Amy Coney Barrett and chief justice John Roberts joined the court’s three liberals to deny the request.

The uproar from the right, especially against Barrett, was ferocious. Barrett has become a swing vote who is increasingly seen in the MAGA movement as “evil,” in the words of Michael Cernovich, and, sure enough, she has disconcertingly veered sharply to the left in more recent votes.

That said, in the larger scheme of things, this one decision is a small setback for Trump, especially because the court majority called upon the lower court to “clarify what obligations the government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.” In other words, it leaves a lot to be decided with respect to any future impoundments.

More important, it tees up the really important constitutional questions that need to be decided: How much power do the courts actually have versus what they should have, not only in gaining generalized control over such broad policy areas as foreign aid, environmental regulation, and DEI initiatives but, for district courts, their ability to claim universal jurisdiction for their rulings.

In this case, one district court judge imposed a directive upon the entire federal government, and the Supreme Court let it stand. What’s more, other district courts are also imposing injunctions that apply nationally to Trump administration actions.

How can that be? Or, as Alito wrote in his dissent in the 5-4 ruling, “Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic ‘No,’ but a majority of this court apparently thinks otherwise. I am stunned.”

Alito wrote that the court was making “an unfortunate misstep” that will impose a $2 billion penalty on American taxpayers.

“The district court has made plain its frustration with the government, and respondents raise serious concerns about nonpayment for completed work,” he wrote. “But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the court does today.”

Of course, the courts’ self-aggrandizement of their jurisdictions—both geographically and in breaching the constitutional firewall between the judicial and the legislative—is the real issue before us. It’s been coming for years and years, and now is the time to tackle the core question: What is to be done with a rogue judicial system that operates in all the states and the federal government and from lower courts all the way to state supreme courts and the U.S. Supreme Court?

An Unused Power

Courts have been running wild since the early 1960s, and, as long ago as 2008 (and even before that) then U.S. Rep. Ron Paul (R-Texas) had called attention to it.

Part of the problem was the ascent of activist progressives to the bench, but, as Paul realized, part of the problem was that Congress was not wielding its rightful constitutional authority that is so integral to our system of checks and balances. That rightful authority is the key to preserving legislative control of actual lawmaking.

That is to say, Congress has the power to limit the courts’ jurisdiction, and, when it comes to lower federal courts, the right to wipe them out of existence if lawmakers wanted to. The Founders wanted elected representatives to determine policy and law, not the courts and not a Borg bureaucracy.

Paul was particularly concerned about activist courts.

“I would also work with Congress to pass legislation limiting federal jurisdiction over issues that the Founders intended to be resolved by the states, local governments, and the people,” Paul told the Federalist Society during his 2008 presidential campaign. “… Federal judges were never meant to wield the tremendous power that they do in modern America. Our Founders would find it inconceivable that a handful of unelected, unaccountable federal judges can decide social policy for the entire nation.”

Judicial activism, Paul said, is the practice of judges ignoring the law and deciding cases based on their personal political views.

“Congress is guilty of enabling judicial activism,” he said. “Just as Congress ceded far too much legislative authority to presidents throughout the 20th century, it similarly has allowed federal judges to operate wildly beyond their constitutional role. In fact, many current members of Congress apparently accept the false notion that federal court judgments are superior to congressional statutes. Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.”

Paul described how that process of stripping federal courts of their jurisdiction—or requiring district courts to stay in their jurisdictional lane, as the case many be—is laid out in the constitution’s Article III: “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.”

And this: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Eric J. Segall and Christopher Jon Sprigman, two left-leaning law professors, make the same point in “Reducing the Power of the Supreme Court: Neither Liberal nor Conservative but Necessary (and Possible),” published in the NYU Journal of Legislation & Public Policy in 2020. Neither Segall nor Sprigman are originalists, but they agree with originalists that the Founders envisioned that justices would “use their authority sparingly and only, as Alexander Hamilton noted in Federalist No. 78, when there was an ‘irreconcilable variance’ between a statute and the Constitution.”

“Any sincere originalist committed to upholding the framers’ conception of judicial review would have to adopt this narrow understanding of the legitimate use of that potentially great power, one where judges defer to elected leaders unless the constitution unmistakably commands them not to,” Segall and Sprigman wrote.

Not embracing that vision has led to many egregious decisions, the attorneys asserted, including the Roe v Wade decision creating a constitutional right to abortion. (Their article was published prior to Roe’s overturning.)

“By ‘egregious,’ we don’t mean Supreme Court decisions we disagree with as a political matter,” they wrote.

Such decisions—and many like them, both from conservative and liberal courts—are unduly aggressive and disrespectful of democratic self-government, the attorneys argued.

Again, though, what can be done? Like Paul, Segall and Sprigman point to Congress’s constitutional powers to rein in the courts.

“We need to end the practice of unelected judges resolving so many of our country’s most difficult political, social, and cultural issues,” they wrote. “And the only way to do that is deep, structural reform that will force the Supreme Court to stop overreaching. Hoping that the President and the Senate will appoint more deferential justices is simply not a viable option. Governmental officials rarely give up such power voluntarily.”

The constitution’s Article III gives Congress substantial power to strip the jurisdiction of the federal courts, Segall and Sprigman wrote—a tool that can be employed to rein in the power of courts, including the Supreme Court, and even to override judicial decisions when there is a substantial and enduring political coalition standing for change, all without requiring a constitutional amendment.

“Article III explicitly gives Congress the power to limit the jurisdiction of lower federal courts,” they wrote. “Indeed, it gives Congress complete discretion whether to create them at all, and that power to make or unmake the lower federal courts has, from the founding, been understood by Congress as a power to limit their jurisdiction … Article III also explicitly empowers Congress to make ‘exceptions’ to the Supreme Court’s appellate jurisdiction—i.e., to approximately 99% of the Supreme Court’s total docket.”

The simple act of reviving those powers and conveying a serious message that Congress will use them if necessary would work as a powerful deterrent to the most aggrandizing activist courts and judges. Much like Trump has shown the world he is serious when he says he will not hesitate to use his vast presidential powers, a strategy with substantial success already, so too can Congress send a similar message.

It just has to be willing to do so.

“The Constitution gives Congress enormous control over the role that courts play in our democracy,” Segall and Sprigman wrote. “We have traditionally acquiesced to an expansive role for the federal courts, mostly without thinking about it. It is long past time for the pendulum to swing in the other direction and for the American people, legal scholars, and politicians to seriously reconsider the idea of judicial supremacy.”

Priests in a Fake Greek Temple

The urgency is the same in state courts, including Wisconsin, though the details are a little different given that, in the Badger state, as in many states, we elect our judges. But the same overreach is occurring, obviously, and so the same question must be asked: What can we do about it?

Well, for one thing, we can elect a new Supreme Court justice by the name of Brad Schimel, the former attorney general, and that certainly should be done. That election will decide control of the Wisconsin court—whether progressives keep it or conservatives take it back—and once again big money is pouring in from partisans on both sides.

If liberal activist Susan Crawford wins, progressives will brazenly make Wisconsin law and policy from the bench. Two years ago, when Janet Protasiewicz ran, it was a campaign about what Wisconsin’s abortion laws will be. This year, Act 10 is on the ballot, congressional redistricting, and more.

It’s not just legislation, but the progressives’ willingness to use the court’s formidable powers to box out appeals courts, shut down debate, and fast-track decisions they want. Specifically, the radical Wisconsin court has stepped up its bypass of the court of appeals to assume cases by original jurisdiction, a tactic that enables progressives to put in place radical schemes quickly but also constricts and chokes off debate over significant constitutional measures.

To his credit, justice Brian Hagedorn has raised this concern, and he addressed it again just this past January in a concurrence in Wisconsin Voter Alliance v. Secord, in which he addressed one of several ways the Supreme Court majority short circuits the appeals court.

“This court has, at times, minimized the important role the court of appeals can and should play in the development of Wisconsin law,” Hagedorn wrote.

In another case, Wisconsin State Legislature v. Wisconsin Department of Public Instruction (DPI), justice Rebecca Grassl Bradley objected to a bypass petition because she thought it premature, but she also said the majority appeared to decide bypass motions not on merit but on ideology.

“Process matters,” Bradley wrote.

As for outright legislating from the bench, forcing activist courts to adhere to their proper roles is exceedingly difficult. It’s important to win the upcoming Supreme Court election, but, overall, electing judges has not served as a cure for court overreach in the state.

In addition, there are caveats that go with Supreme Court elections: They are held in the spring when turnout is lower and when mobilized special interests can have an outsized impact, while elections for judges inevitably apply partisan pressures on candidates who are not supposed to be partisan. It’s almost an oxymoron.

That said, that’s no reason to stop electing judges. Merit selection is just as partisan, and even more biased and controlled by special interests than elections. As someone said about democracy, electing judges is a horrible way to pick them, but it’s better than any alternative out there. Besides, it’s just common sense. We surely cannot bring control of the courts back to the people, if we cut the people out of the process.

But more is needed and that more is legislative oversight and control of the court’s jurisdictional boundaries, the same remedy we need on the federal level. Already the legislature has overturned several misguided decisions—including reversing the court on riparian rights, in a case in which justices deliberately tried to sink those rights in a deep flowage—but those don’t involve constitutional questions the legislature can’t touch.

Instead, lawmakers need to consider bills that empower the legislature to limit jurisdiction on certain issues or to narrow the court’s potent original jurisdictional powers. Without question such measures would require constitutional amendments, but powerful arguments can be mobilized for voters to pass such amendments, not least when the federal constitution grants the federal legislature similar powers.

Whatever the remedy, recent actions in the state’s high court and now in the courts at the federal level make urgent the need for elected representatives of the people to gain some oversight of the courts. As Segall and Sprigman wrote about the federal courts: “… decisions about values should be made democratically, according to regular voting procedures that apply to the people and their representatives. They should not be made by five or more lawyers dressed like priests who sit in a fake Greek temple on a hill. The framers would agree.”

Many years ago, in 2006, federal appeals court judge Diane Sykes, speaking at a Marquette Law School lecture, cited cases showing the state high court’s overreach even then, and called for debate about how to restore the courts to their proper roles.

Sykes rattled over a list of cases in which she believed the Supreme Court had overstepped:

For example, she observed that the court had rewritten the rational basis test for evaluating challenges to state statutes under the Wisconsin constitution and then used it to strike down the statutory limit on noneconomic damages in medical malpractice cases. That the court felt it necessary to rewrite the longstanding law of rational basis review at all was telling, Sykes said: “The implication is that ordinary rational basis scrutiny would not produce the result the majority wanted to reach."

She observed that the newly reconstituted rational basis test allowed the court to declare the caps unconstitutional and that the analysis of the determination was “chock-full” of citations of state and national studies on the relative merits of damages caps, and the dissent in the case criticized the majority’s use of the studies as selective and misleading.

“What is readily apparent from all the back-and-forth about what the studies do or do not show is that the court’s majority is making a political policy judgment, not a legal one,” she said. “Fundamental to separation of powers is the principle that it is the prerogative of the legislative branch to evaluate the effectiveness of statutory solutions to social problems, and to decide whether the inevitable trade-offs are acceptable and the allocation of economic burdens and benefits are appropriate to the circumstances. The court’s responsibility of judicial review is not a warrant to displace legislative judgments.”

Sykes said said the constitution had never been interpreted so expansively and that the Wisconsin Supreme Court was quite vigorously asserting itself against the other branches of state government.

“The present Wisconsin Supreme Court is plainly disinclined to defer to the judgment of those elected to represent the people of this state, even though the structure of state government and the court’s precedents require it to do so,” she said. “The court has lowered the threshold for invalidating statutes by adopting a heightened standard for evaluating their constitutionality. The court is quite willing to devise and impose its own solutions to what it perceives to be important public policy problems—civil and criminal—rather than deferring to the political process. These cases from the last term reflect a court quite willing to aggressively assert itself to implement the statewide public policies it deems to be most desirable.”

That sounds like a description of today’s Supreme Court, except today’s court is that court on steroids. There is only one remedy, I think, as Ron Paul put it so long ago: “Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.”

Ditto on the state level. And, as Sykes urged, there needs to be immediate debate on the issue to get it on the table. That debate never happened then, and look where it got us. It needs to happen now.

Better late, than never.