This past year has seen another egregious example of leftist judicial activism run amok with the Supreme Court’s excrement laden ruling in Obergefell v. Hodges legalizing same sex marriage. Our constitutional order is clearly breaking down when unelected judges from the Supreme Court and other courts are able to determine what federal and state laws should be without the consent of Congress, state legislatures, and voters.
Since the judicial branch is one of the three coequal and constitutional branches of government and ostensibly subject to congressional oversight and funding, it should be subject to the same congressional scrutiny the executive branch and independent agencies and their officials are. Consequently, I propose that all nine U.S. Supreme Court justices be required to testify before the House and Senate Judiciary Committees once a year to explain their rulings and the rationale behind their decisions.
Since the Supreme Court is on recess between from July-September, this could be done in September. Precedent for a Supreme Court justice testifying before Congress already occurs annually when the Chief Justice testifies before Congress on the federal judiciary’s proposed budget. This is an opportunity to query the justices about their decisions during the previous year which both Democrats and Republicans should welcome. For instance, those of us on the Republican side of the aisle would enjoy seeing House Judiciary Committee members such as Jim Turner (OH), Trey Gowdy (SC), Ted Poe (TX), and committee chair Bob Goodlatte (VA) grill the justices on lousy decisions such as Obergefell and other examples of egregious judicial activism and constitutional folly. Let’s see Justice Kennedy explain his prepubescent rationale for the court’s opinion in Obergefell and Justices such as Sotomayor, Kagan, Breyer, and Ginsberg explain their contempt for traditional constitutional jurisprudence and moral values.
On the Senate side, it would be nice to see Judiciary Committee Republicans such as Jeff Sessions (AL), Mike Lee (UT), Lindsey Graham (SC), and Ted Cruz (TX) grill the justices guilty of imperial overreach. Seeing Cruz go at the liberal justices would definitely be educationally enriching and blockbuster viewing. Chief Justice Roberts should also have to explain in detail how his normally valuable and sensible writings, including his dissent in Obergefell, fell by the wayside in his imprudent opinions backing Obamacare.
At the same time, I also think Justices Thomas, Scalia, Alito, and Roberts will do a good job educating Democratic members of the congressional judiciary committees on proper constitutional interpretation, reasoning and judicial philosophy. Seeing the histrionic criticisms of Citizens United would be particularly enjoyable.
I envision the Justices spending close to a day before both the House and Senate Judiciary Committees. Their would be ground rules which would need to be negotiated such as limiting questions to cases decided during the previous year, limits on the amount of time committee members could ask oral questions of individual justices, and it may be desirable to have five justices testify before the House Committee and four before the Senate Committee. The justices should also have to respond to committee members written questions in a timely manner which is standard procedure for witnesses testifying before Congressional committees.
The congressional judiciary committees should start this process by inviting the justices to testify. However, if the justices repond to this invitation with Olympian haughtiness, then they should be subpoenaed and Congress should also consider sanctions as varied as holding them in contempt of Congress and impounding their compensation.
By testifying annually before congressional committees, the justices would need to be able to effectively articulate their legal decision making in a more combative and political environment. Several years ago, I got to hear Justice Scalia speak at the University of Kentucky, and he is more than capable of dishing it out to his critics. Most importantly, justices need to know how their decisions are being received by public opinion as expressed by elected members of Congress. It is said that the Supreme Court reads election returns. If so, this is a way they can get up close and personal with public opinion on the weighty constitutional issues they must consider and explain their decisions in a way that goes behind esoteric legalistic verbosity and is presented in a comprehensible manner to the educated citizen.