Legislative override of SCOTUS

Our Supreme Court has become arrogant and lawless. It mangles the Constitution; it upsets the federal balance of power; it tramples the will of the states and the voice of the people. Its unelected, unaccountable justices use their power to take over school systems and prisons; to seize private property without compensation; to confer due process rights on foreign enemy combatants; and to protect pornography and flag-burning while limiting political speech, to name just a few of its offenses. James Dobson, founder of the think tank Family Research Council in the 2005 book Judicial Tyranny: The New Kings of America, said: "What we have today, is an oligarchy --- rule by a small cadre of elites. The courts strike down laws and policies they don"t like, whether their opinions reflect the Constitution or not. the activist judges have turned the Constitution into what they call "a living, breathing document," in which its actual words no longer mean what they say. The Constitution "evolves" they tell us, to fit the biases of the Court. Consequently, we no longer have a government "of the people, by the people, and for the people.' It is, instead, an oligarchy." This is not what the Framers of the Constitution intended. Let"s take a closer look at some specific ways that the Supreme Court is tearing at the fabric of our republic. HARM 1 " CONSTITUTION DISREGARDED Former U.S. Attorney General Edwin Meese, in the 2015 book "Men in Black," writes: "The Supreme Court treads recklessly on virtually every avenue of life and governance. Even in areas such as the political process and electing a president, over which the Framers gave exclusive authority to Congress and the states, justices have interjected themselves and twisted constitutional precepts " such as free speech and equal protection " into dangerous weapons. Perhaps nothing troubles me more than justices who invoke international law and the decisions of international tribunals in interpreting the Constitution. foreign laws and foreign courts are not legitimate guideposts for interpreting the Constitution. When justices rely on [foreign laws and foreign courts], they are violating their oaths to uphold our own Constitution. Let me give you just three brief examples of the Court"s disregard for the Constitution. First, the 1942 case of Wickard v. Fillburn. The Supreme Court distorted the Constitution"s Commerce Clause, ruling that the federal government can regulate, as interstate commerce, the amount of wheat grown by a farmer for use on his own farm --- wheat that was never sold to anyone and never sent across state lines. Attorney Jack Pack, in the American Spectator, March 14, 2012: "Wickard v. Filburn ranks up there with the most pernicious decisions the Supreme Court has ever made. Its expansive view of the Federal Government's Commerce Clause powers has paved the way to greater and greater intrusions by federal actors into our daily lives. Now, a majority of the Supreme Court may conclude that it justifies Obamacare's nationalization of one-sixth of our economy. Enough of this nonsense! " My second example is Cooper v. Aaron. With that 1958 ruling, the Court asserted a doctrine of judicial supremacy that it has used for decades to irrevocably impose its will on the American people. Judge, Constitution Party founder and Conservative Caucus chair, Howard Phillips, in "Judicial Tyranny," 2005: "In Cooper v. Aaron, Chief Justice Earl Warren boldly and erroneously claimed for the first time that the Supreme Court"s interpretation of the U.S. Constitution is the "supreme law of the land" " Since [his] pronouncement, a couple of generations of law students have been taught this heresy, and it is hard to find a judge or even a lawyer who doesn"t believe it. The Founding fathers did not write a Constitution that set up a judicial oligarchy " Nothing in the U.S. Constitution justifies judicial supremacy." Finally, in Roper v. Simmons in 2005, the Supreme Court struck down laws in 18 states permitting the execution of minors. While I agree with the the policy decision of not executing minors, the Supreme Court"s methods were appalling. The Heritage Foundation"s Rule of Law Initiative, March 1, 2013: "In the infamous case of Roper v. Simmons, the Court uses a panoply of activist 'tools.' The judges engage in judicial imperialism, citing their own 'independent judgment' as authoritative. They also imported foreign law into Eighth Amendment jurisprudence, clearly unable to justify their conclusion with any existing U.S. law ... [Justice] Kennedy further reveals his misunderstanding of the judiciary"s role when he looks to international opinion to assess whether the 'evolving standards of decency' forbid the execution of minors, . He demonstrates this "international consensus" in part by citing a treaty to which the United States is expressly not a signatory. While thinly conceding that international law isn"t controlling on this matter, the Court looks to foreign law to find confirmation of its own preferred conclusions. Rather than exploring the original meaning of the Eighth Amendment, the five justices of the majority instead frolic and detour through evidence of foreign standards, which they use to confirm their own policy preferences." HARM 2 --- LEGISLATIVE POWER USURPED The Supreme Court has seized supremacy over Congress, over the States and over "we the people." With the vote of 5 justices, the Court can strike down the laws enacted by 345 Members of Congress, the statutes issued from 50 state capitols, and the will of millions of American citizens. Constitutional attorney Phyllis Schlafly, in the 2005 book "Judicial Tyranny," wrote: "Activist judges impose policies on the American people that our elected representatives would not vote for. Activist judges create laws and rights that Congress and the state legislatures would never pass. An activist judiciary is the way to bypass self-government." In a stunning example of usurping state authority and overriding the will of the American people, the Supreme Court"s Obergefell v. Hodges decision last June established a Constitutional right to same-sex marriage, striking down the marriage amendments in 37 states. Supreme Court Justice Clarence Thomas, in his dissent, wrote: "This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The Court seized for itself a question the Constitution leaves to the people The Court had no reason " no basis in the Constitution " to short-circuit the democratic process." Constitutional appellate litigator Michael Farris, February 17, 2016: "The Supreme Court was not designed as a political institution. The Court was never designed to make law. It was intended to have judicial power which meant that it was to apply existing law to factual disputes to reach a just outcome between the parties. A branch of government that makes law is a political branch. We have all heard and read the words: "The Supreme Court legalized same sex marriage." This is literally true. The Court enacted a de facto amendment to the Constitution. The same thing is true about a host of other contentious issues. The Supreme Court routinely makes law in the guise of constitutional interpretation." I OFFER THE FOLLOWING PLAN: Congress will propose, and the states will adopt an amendment to the Constitution to provide for a legislative override of a Supreme Court decision by either a three-fifths vote of both houses of Congress, or by a three-fifths vote of the State Legislatures. The override must be exercised within two years of the Supreme Court"s decision. It is not subject to a presidential veto or to litigation or review in any federal or state court. ADVANTAGE 1: ABUSIVE RULINGS DETERRED My plan gives Congress and the State Legislatures the ability to override a Supreme Court decision with supermajority votes. Attorney Mark Levin, in his 2013 book, "The Liberty Amendments," argues: "By adding the override, for the first time justices will know that their most significant majority opinions may not solely be judged by history, but by the people who must live under them, with the possible ignominy of having a ruling overridden by a supermajority of the legislative branches. " ADVANTAGE 2: BALANCE OF POWER RESTORED Our plan returns the court to its proper role. It restores legislative power to elected representatives in Congress and the state legislatures. Michael Farris, in the Daily Caller, February 17, 2016: "We need to take the Supreme Court down a notch. The only way is by a constitutional amendment that places restraints on the ability of the Court to overturn the political decisions of elected officials. The solution is to return our decision making to the people and their elected legislators and to dethrone the imperial judiciary." Judge, our legislators are ready and waiting for this tool. Congress unanimously agreed that with Employment Division v. Smith, the Supreme Court crippled the First Amendment. Congress needed this override. With United States v. Windsor, the Court overturned the Defense of Marriage Act, passed with veto-proof margins by both the House and Senate. Congress needed this override. The Supreme Court invalidated term limit provisions of 23 states with Term Limits v. Thornton. Those states needed this override. The Court struck down 31 state bans on partial birth abortion with Stenberg v. Carhart. Those states needed this override. The Court obliterated 37 state marriage amendments with Obergefell v. Hodges. Those states needed this override. It is past time to rescue our government of the people, by the people and for the people by civil and legitimate means.