-By Warner Todd Huston
My favorite sentiment about the U.S. Supreme Court is from that rascal President Andrew Jackson. In 1832 the U.S. Supreme Court issued a decision in Worcester v. Georgia that Old Hickory wasn’t too happy with. In reply he is famous for the sentiment that the Court made its decision and proposed that “now let them enforce it.”*
Would that we had more Andrew Jacksons.
Well, perhaps we do have at least one. I nominate Governor Chris Christie for the Andrew Jackson award for 2010 because Christie is taking an extremely unusual measure for this day and age. He’s firing one of New Jersey’s Supreme Court Justices and appointing one of his own, one that will closer follow a more conservative path.
We need to see legislators exhibit a more adversarial relationship with the courts. You see, it wasn’t supposed to be that the courts ruled all they surveyed. Our system has been warped into imagining that the courts are the final word on everything. This was not supposed to be the way it worked. Courts were merely meant to read the law and adjudicate cases accordingly. And if a court ruled something un-constitutional, then it was then back in the legislature’s court to write a law that is Constitutional. Unfortunately, we’ve lost the idea that the legislatures and executives of our political system are supposed to fulfill their own roles as leaders and lawmakers. Unfortunately, they’ve all too often abdicated roles to the often unelected and unaccountable courts.
But not Christie. Governor Christie has fulfilled the hardline he intended to take with at least this one justice.
Before and since becoming governor, I was unambiguous in my intention to bring balance and change to the Supreme Court. My selection today is not a commentary on Justice Wallace. It is a fulfillment of my promise to turn the court away from its history of using legal precedent to set social and tax policies in our state — a role which belongs squarely with the legislative and executive branches of state government.
Hear, hear, Governor Christie! Would that more of your brethren in government took their own leadership roles as seriously.
Now, don’t mistake me, here. I can hear the criticism now that I am proposing to thwart the rule of law by making life harder for judges. I am not. But what we have right now is just the opposite. We have a judiciary that is entirely out of control, one that has no force to keep it honest. Should the legislatures and executives act more like Christie and regain their proper role as the check on judicial arrogance, we’d see some chastened judges across the country, and we will find judges spending more energy making sure they are correct instead of being activists. We’ll see more judges subtly engaging the law instead of being the arrogant, power mad extremists in black robes we are now saddled with throughout the legal system from the lowest courts to the highest. I am not proposing that judges fear for their careers necessarily, but everyone needs to know they are accountable for their actions. Right now, judges are not and they need to be.
So, let’s praise Governor Christie for taking the upper hand.
*To be clear, Jackson didn’t exactly say “let them enforce it,” but he did say that in essence. What he said about the SCOTUS decision in Worcester v. Georgia was, “the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”