In March, U.S. Representative Ron Lewis introduced House Resolution 3920, also known as the "Congressional Accountability for Judicial Activism Act." If passed by Congress, HR3920 would empower Congress to overturn future Supreme Court decisions by a two-thirds, supermajority vote. Congress could trump the nation's highest court only when the judgment concerns the constitutionality of an Act of Congress.
Twenty-six House members, including three Texans, co-sponsored the resolution, which has lingered in the Subcommittee on the Courts, Internet, and Intellectual Property since April. Lamar Smith, who represents part of Bexar County, chairs that subcommittee.
Yet it appears the issue of gay marriage, more than a Supreme Court run amok, prompted Lewis to introduce the measure last March.
Constitutional experts fear that one issue - gay marriage - could upend 200 years of constitutional process. "I would caution that it shouldn't be a single issue that drives us away from constitutional arrangements," said Larry Sager, law professor at University of Texas at Austin. "Americans have reason to be fond of those constitutional arrangements. It's hard to see this as more than a single-issue response. No sensible American could say this is a crazy liberal court."
Of the nine Supreme Court justices, seven were appointed by Republican presidents: four by Ronald Reagan, two by George H.W. Bush, and one by Gerald Ford. Two were appointed by a Democratic president, Bill Clinton.
Lewis called judicial activism "a grave and growing problem in our national discourse that is threatening our democratic principles, eroding the consent of the governed, and radically altering the social fabric of our society."
However, the resolution itself appears to be "radically altering" the constitutional landscape. "It's inconsistent with a long and settled practice, and largely for that reason, quite dangerous," said Mitchell Berman, UT-Austin law professor. "It's either a risky gambit or it's just a public relations stunt."
Using a past court case, Brown vs. Board of Education, as an example, Berman laid out a worst-case scenario resulting from HR3920: In that case, the Court ruled segregation was unconstitutional, yet seven states refused to comply with the decision. President Eisenhower sent in the National Guard to enforce the judicial decree. But what would have happened if Congress could have overturned the Court's decision?
"What happens if you have a situation in which the president acts on behalf of a Congressional authority in opposition to the Court, and a state is emboldened to resist presidential authority because its acting in line with the court?" Berman said.
Through his communications director Gina Vaughn, U.S. Representative Pete Sessions said that he couldn't point to a current issue facing Congress or the Court where such Congressional action would be necessary. "There could come a time where the judicial system is making the law rather than reviewing it," Vaughn said. "But the burden of proof would be so significant that it would have to be an issue of national priority."
Vaughn used the example that the Courts could rule it is unconstitutional to include the words "one nation under God" in the Pledge of Allegiance or "In God We Trust" on currency.
"He's not opposed to judicial review," Vaughn said. "The constitution gives the legislative branch the power to make laws."
John Carter, Sam Johnson, and Lamar Smith's offices didn't return calls to the Current by deadline.
Few legal scholars say they believe the resolution will pass. "I think the true purpose is to register congressional frustration on the party of those who support the resolution," said St. Mary's University law professor Michael Ariens.
"It's not the court's job to win popularity contests," added Sager of UT-Austin. "Its job is to bring us closer to justice." •
By Lisa Sorg
The full text of U.S. Representative Lewis' comments on the introduction of House Resolution 3920.
`Congressional Record: March 4, 2004 (House)`
JUDICIAL ACTIVISM, A GRAVE AND GROWING PROBLEM
The SPEAKER pro tempore. Under a previous order of the House, the gentleman from Kentucky (Mr. Lewis) is recognized for 5 minutes.
Mr. LEWIS of Kentucky. Madam Speaker, I would like to take this opportunity to speak about judicial activism, a grave and growing problem in our current national discourse that is threatening our democratic principles, eroding the consent of the governed, and radically altering the social fabric of our American society.
It should be of little surprise that the impetus of this debate, and the modest solutions I intend to set forth, stem from the November ruling by the Massachusetts Supreme Court to allow same-sex marriages and the subsequent rulings on the constitutionality of the Defense of Marriage Act that have followed.
I am a strong supporter of numerous legislative measures currently being considered by this Congress, aiming to define marriage as an exclusive union between one man and one woman. However, I believe a more comprehensive solution is necessary to address the broader, troubling trend toward judicial activism, a development with definitive implications beyond just the issue of marriage.
America's judicial branch has become increasingly overreaching and disconnected from the values of everyday Americans, many of whom I represent in the Second District of Kentucky. The recent actions taken by courts in Massachusetts and elsewhere are demonstrative of a single branch of government taking upon itself the singular ability to legislate. I believe these actions usurp the will of the governed, circumvent representative government by allowing tribunals of a select few, not elected or otherwise politically responsible, to conclusively rule on issues that are radically reshaping the societal traditions of our great Nation.
Clearly, this issue is one about power, not in the raw political sense but in terms of the allocation of government authority between each branch of government, specifically between Congress and the Judiciary, in a federal system that relies on checks and balances to protect our liberty. This is a debate that has been taking place since our founding.
At no point is the tension between Congress and the courts greater than in the realm of constitutional interpretation. The Constitution does not expressly provide for judicial review. Instead, the right of judicial review is a practice with origins from the bench
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itself, established in 1803 when Chief Justice John Marshall ruled, ``It is emphatically the province and duty of the Judicial Branch to say what the law is.''
The Marbury v. Madison case decision provides an extraordinary recognition of judicial power in a constitutional form of government. The exercise of such broad authority, expanded over time through political tradition, clearly has a growing adverse effect on the relationship between coequal arms of our national government. As judicial power expands, congressional power contracts. This is especially true when the power to interpret the Constitution rests in the hands of activist judges anxious to find the latest ``right'' hiding between the lines of our founding document.
Our Founding Fathers created three separate branches of government, each with equal checks and balances on the other. Our founders also ensured that each branch, including Congress, play a role in constitutional interpretation, requiring officials in each branch to take an oath to support and defend the Constitution.
The framers did not give authority to one branch over the other. Certainly each branch has its separate functions, but debating, defending, and upholding the tenets of the Constitution involve the decision and duties of each branch. As a Congress, we must change our thinking and reaffirm our authority to interpret constitutional issues in concert with, and independent from, the courts.
The framers of the Constitution were advocates of serious debate who believed that the deliberation of the political process should always be open to the people. If the courts continue their dramatic move toward self-proclaimed interpretive power, I believe Congress, as the people's branch of representative government, should take steps to ensure equal balance and authority to check the final results.
I am introducing legislation today to address these serious, pressing issues in a direct and forceful manner. The bill that I have authored, if enacted, will allow Congress, by a two-thirds majority of each House, to reverse a judgment of the Supreme Court. This additional check may only be enforced on rulings concerning the constitutionality of an act of Congress following the enactment of this bill.
In his first Inaugural Address, Abraham Lincoln warned, ``The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to irrevocably fixed by decisions of the Supreme Court, the instant they are made, the people will have ceased to be their own rulers, having practically resigned their government into the hands of that eminent tribunal.''
It is my hope that the people and the courts will see my position and recognize the serious problems arising from this growing imbalance of constitutional authority. I urge my colleagues from both sides of the aisle to redress judicial activism, protect the equal dignity of this governing body, and preserve the majority will of the governed by supporting this legislation. •