The Role of the Federal Judiciary

• What role does the judicial branch have in the federal government?

• Why is the speech that Justice Elena Kagan made at a recent judicial conference so dangerous?

• How can We the People protect ourselves from an out of control federal judicial system?

In Federalist Papers #78, Alexander Hamilton said the federaljudiciary would be the branch of government least dangerous toour rights. Is that how the courts are working in the 21st century?What makes the courts today so injurious to our rights? We get aclue from current Associate Justice Elena Kagan, in a speech shegave at a judicial conference in Montana this July. By comparingher statements to the Constitution and the writings of those whohelped frame it, we should not only be able to answer what makesthe court dangerous to our rights, but how to protect our rightsfrom them.

Associate Justice Kagan made a statement that many probablytook in stride, but for me was jaw dropping.I’m not talking about any particular decision or even anyparticular series of decisions, but if over time the courtloses all connection with the public and with publicsentiment, that’s a dangerous thing for a democracy,

Elena Kagan at a judicial conference in MontanaAs I said, I expect most people to read this sentence and not giveit a second thought, but when I read this, I see the failure of therepublic. Let me explain.

Some of you may be thinking I’m pointing out the repeated lie thatAmerica is a democracy. We are not, we are a constitutionalrepublic. While that fact is important to understanding just howjaw dropping Justice Kagan’s statement is, it’s nothing comparedto heart of her error. Justice Kagan is concerned that the courtmay lose its connection with the public and public sentiment, butthe court is not elected by the public, and for a very good reason.The court’s job is not to court public opinion, but to decidecontroversies and criminal prosecutions based on the law.That branch of government which is concerned in the trialand determination of controversies between parties, andof criminal prosecutions; the system of courts of justice ina government. An independent judiciary is the firmestbulwark of freedom.

JUDICIARY, noun – Webster’s 1828 DictionaryThe fact that a judge can rise to the level of the Supreme Court ofthe United States and think that the court should be swayed bypublic opinion should scare the American people. The branch ofgovernment that represents the people and the states isCongress, not the courts. How can we say that we have arepresentative government if unelected judges can supersede therepresentative branch? We are not a nation of laws when thosewho are to apply the law think they can make it up for themselves.What Justice Kagan is describing is not a constitutional republic.It’s not even a democracy. It’s an oligarchy! She believes it’s therole of the court to determine public sentiment, then apply that tothe cases before them. But who decides what the “publicsentiment” is? According to Justice Kagan, it’s the unelectedmembers of the Supreme Court, the rulings of nine high priests inblack robes. The very tyranny that we declared independencefrom?

The Role of The JudiciaryIn his essay on the judiciary, which became known as FederalistPapers #78, Alexander Hamilton described the role of the courtswithin the central government plainly.Whoever attentively considers the different departments ofpower must perceive, that, in a government in which theyare separated from each other, the judiciary, from thenature of its functions, will always be the least dangerousto the political rights of the Constitution; because it will beleast in a capacity to annoy or injure them…

Alexander Hamilton, Federalist Papers #78Hamilton starts out by stating the judicial branch is the leastdangerous to our rights, because they have the least capacity toinjure us. Why is that? It seems today that the courts arefrequently trampling our rights, so how can it be they are leastable to injure us? The answer comes from the rest of the paragraph.…

The Executive not only dispenses the honors, but holdsthe sword of the community. …

Alexander Hamilton, Federalist Papers #78The President is not only responsible for the nomination ofnumerous officials, but the commissioning of all officers, bothpublic and military.…

he shall take Care that the Laws be faithfully executed,and shall Commission all the Officers of the United States.U.S. Constitution, Article II, Section 3The President helps choose who works in the Executive Branch,meaning all of those bureaucrats that pass rules and regulationsthat impact our lives every day.…

The legislature not only commands the purse, butprescribes the rules by which the duties and rights ofevery citizen are to be regulated. …

Alexander Hamilton, Federalist Papers #78Congress controls the purse. They have the power to tax, spend,and even borrow against the credit of the United States.Furthermore, with the power to legislate means the power tomake laws. These laws may impact everyone in America. Butwhat about the courts?… The judiciary, on the contrary, has no influence overeither the sword or the purse; no direction either of thestrength or of the wealth of the society; and can take noactive resolution whatever. …

Alexander Hamilton, Federalist Papers #78The courts are supposed to have no influence over either thesword (military and police) or the purse (the taxing and spendingof money). Yet today courts claim the authority to tell the otherbranches how they can use the strength or wealth of society.Think about that last statement. Yes, a judge must sign a warrant,but the courts cannot execute it. A judge may even find a lawunconstitutional, but they have no strength to make the otherbranches comply

.… [The judiciary] may truly be said to have neitherFORCE nor WILL, but merely judgment; and mustultimately depend upon the aid of the executive arm evenfor the efficacy of its judgments.

Alexander Hamilton, Federalist Papers #78

Compare that to the view of the court Justice Kagan appears tohave. She wants the court to assume the will of the people, thenuse that to force others to comply. This is not the courts that ourFounding Fathers envisioned. This is not a court that offersopinions and not rulings. This is not a court with mere judgment,but with power.

Overall, the way the court retains its legitimacy and fosterspublic confidence is by acting like a court, is by doing thekinds of things that do not seem to people political orpartisan

The Solution

Elena Kagan at a judicial conference in MontanaWhile Justice Kagan claims the court retains its legitimacy byacting like a court, her expectations that they enact the sentimentof the people would have them acting as a legislature not a court.Justice Kagan also claims she’s not referring to any recentdecisions of the court, though I would remind the reader this is thejustice who dissented in that same court’s decision that wouldrestore the abortion question to the people and theirrepresentatives. A justice who complained that the majority of thecourt read the actual language of the Constitution, as understoodby the people who wrote and ratified the document. Does thatsound like a court acting like a court? And lest we forget, this isthe same justice who put her feelings about gun violence abovethe law.

The Solution

What can be done about a judicial branch occupied by would-belegislators in black robes?

Let’s return to the words of AlexanderHamilton for some advice.

According to the plan of the convention, all judges whomay be appointed by the United States are to hold theiroffices DURING GOOD BEHAVIOR; … The standard ofgood behavior for the continuance in office of the judicialmagistracy, is certainly one of the most valuable of themodern improvements in the practice of government.

Alexander Hamilton, Federalist Papers #78

Contrary to popular belief, federal judges do not have lifetimeappointments, they serve during their good behavior.

The Judges, both of the supreme and inferior Courts, shallhold their Offices during good Behaviour,

U.S. Constitution, Article III, Section 1But who decides what’s good behavior for a judge? The first stepis the House of Representatives.

The House of Representatives shall choose their Speakerand other Officers; and shall have the sole Power ofImpeachment. U.S. Constitution, Article I, Section 2

That means the power of impeachment rests in the hands of therepresentatives of the people, your employees in the federalgovernment. This is followed by the Senate.

U.S. Constitution, Article I, Section 3

The Senate shall have the sole Power to try allImpeachments.

U.S. Constitution, Article I, Section 3While the role of the Senate is to represent the states, since theratification of the Seventeenth Amendment the people choosethese representatives as well. That means the ultimate decider ofwhat will be considered good behavior for federal judges is Wethe People.

Conclusion

During this talk, Justice Kagan made an important point: She saidthere were times when justices…really just attempted to basically enact their own policy orpolitical or social preferences

Elena Kagan at a judicial conference in MontanaI would suggest the justice heed her own counsel. Her position inrecent cases before the court seem to be based more on herpolitical or social preferences. They are supported not by theConstitution or laws of the United States, but by the previousopinions of judges, many of whom have been just as muchpolitical actors as Justice Kagan has been.

I hope by now you have seen the jaw-dropping arrogance of thelittle talked about words of Associate Justice Kagan. Whileexperience tells me she is not likely to pay any price for her badbehavior, much less the oath she took to support the Constitutionof the United States, I can only hope that the American people willtake this lesson to heart. If we are to have a judiciary that is leastable to injure our rights, we must make sure that those who sit onthese courts be on their best behavior. And when they claim thepower of the sword or the purse, that their bad behavior beappropriately punished.

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Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com