Jack Shields | United States
This week, Republicans were greatly disappointed while Democrats were pleasantly surprised. Justice Brett Kavanaugh sided with the four liberal justices and Chief Justice Roberts in declining to hear a case about the subjects of abortion and Planned Parenthood. It now appears the newest justice may be less willing to look at Roe v. Wade than some believed. There has, of course, been major speculation on just how conservative he will be.
After all, an unelected court of nine lawyers will decide many issues we care deeply about. Of course, they must clearly possess the knowledge and wisdom the rest of us lack in knowing what our rights mean. This is not at all what the framers intended the Supreme Court to be; that is why we must pass TV and radio host Mark Levin’s proposed Supreme Court amendment to restore checks and balances.
The Mark Levin Amendment
SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.
SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.
SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.
SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.
SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.
SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.
SECTION 7: The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.
SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.
Restoring Checks and Balances
This amendment, which Levin proposes in his book, The Liberty Amendments, is the best way to put the Supreme Court back in its place and restore checks and balances.
The Supreme Court was never supposed to be this powerful. Alexander Hamilton claimed in The Federalist No. 78 that the judicial branch was to be the least powerful of the branches. Though it has judgment, this pales in comparison to the force and will of the other branches. It, after all, depends on the executive and legislative branches for cases to hear.
Though this was true for the first 14 years of the Constitution, it soon changed. After the landmark decision of Marbury v. Madison took hold in 1803, it forever changed the power structure of our federal government and effectively derailing checks and balances. It was the first decision that established judicial review. Since then, the Court’s decision has been final in determining if a law is unconstitutional.
The Failure of the Framers
This, in and of itself, is not a bad concept. In fact, it’s probably the correct one. With this feature, when the court decides to guard a liberty, no other branch of government may prohibit it. This directly protects the very idea of limited government. If we are to have a Constitution that restricts Congress, then there must be checks on the power of Congress, making judicial review desirable. However, the framers failed to design this check in the Constitution. Therefore, it is based on precedent, rather than the actual Constitution. What this has done is left the power unchecked. As a result, the Supreme Court basically rules above all; five unelected lawyers can create a ruling all Americans must submit to.
The idea of such an amendment to this, though, has faced widespread opposition. Many feel that Congress or the states will abuse this power and that it is best to keep the judiciary independent and allow it to do its job. In fact, many don’t believe that it’s any other branch’s responsibility to determine if what they’re doing is constitutional.
An Unchecked Branch
However, not everything is simply up to the Supreme Court to decide, despite popular belief. Why would the framers waste all this time designing checks and balances to leave the Judiciary unchecked? James Madison did say in The Federalist No. 51 that men are not perfect and require checks on power. The government must both control men and itself.
Are the lawyers on the Supreme Court somehow exempt from this? Of course not. All 114 Justices that this country has had have something in common: they’re human. Thus, they all are prone to corruption and to occasionally get something wrong, just like the legislature and executive. So, Congress or the states may abuse the power that the Levin Amendment would grant them; that’s the point of checks and balances. The competing ambitions will cancel each other out. Just like Congress and the states, the Supreme Court has ambitions and biases, too. One needs to only look at the Dred Scott decision to see justices getting political. These ambitions need a check, and this amendment provides that.
Another clear issue with the Supreme Court that the Levin Amendment would solve is lifelong appointments. Perhaps the biggest mistake of the framers was not giving a single position in the Constitution a term limit. While the 22nd Amendment remedied this problem for the president, the Supreme Court still serves for life. This causes two problems.
Age and Vacancy
First, the justices age, and as they do, they start to lose their abilities. Mark Levin notes several instances of this in his other book, Men in Black: How the Supreme Court is Destroying America. Chief Justice Rutledge was deranged and suicidal after the death of his wife, Justice Baldwin was losing his mental ability, Justice Grier had paralysis, and Justice Clifford suffered a stroke.
The work quality of them and many more occurred with old age. and there were many more whose quality of work declined with old age. This is a result of being human and no fault of their own, but it is a weakness of the Supreme Court that we must resolve.
The second problem is that it has overly increased the value of a vacant seat. One of the biggest issues in the 2016 election was that either Donald Trump or Hillary Clinton was going to pick the next Supreme Court Justice after the death of Justice Scalia. In fact, some conservatives on the fence about Trump only voted for him to keep the Supreme Court more conservative. Indeed, the country as a whole feels this way.
With a Republican majority government, we are watching to see just how well Justice Ginsburg is feeling today. As soon as the Democrats are back in power, the health of Justice Thomas will be the center of attention. This death watch feels quite immoral. Having a single term limit of twelve years with 3 seats up every four years solves this. We will no longer sit and watch, anticipating who will die when.
A Way to Control the Court
With this amendment, making sure your guy is in office when the vacancy opens up is far less important. With it happening every four years, both sides will likely get to pick justices. This means that you won’t have to compromise your values to ensure the Court leans towards your beliefs. With this in place, the Supreme Court will be less powerful. Such a move is essential to continue checks and balances.
The Supreme Court is far too powerful. We must find a way to bring back checks and balances. Both the Court and the rest of the government must not have too much power. This amendment is clearly the best way to do it.
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