Rick Santorum, who, yes, is still running for President, has an odd take on judicial reform:
GOP presidential candidate and former U.S. Sen. Rick Santorum went after the judicial branch during a policy speech Friday morning in Iowa, advocating for abolishing the 9th Circuit Court of Appeals and amending the Constitution to overturn Roe v. Wade and ban same-sex marriage.
“One of the things I’m most passionate about is the usurpation of authority the judiciary has done over the last couple decades in this country,” Santorum told a crowd of about 50 in Urbandale.
Santorum said it’s clear to him the U.S. Constitution gives the judicial branch the least power because it’s listed third in the articles, after the legislative and executive branches. He also questioned whether the Constitution allows for courts outside of the U.S. Supreme Court, and said the two other branches established those courts.
“They can establish them, and if those courts violate the Constitution and do things that they should be stopped from doing, they have the power to repeal those courts, to abolish these courts,” said the Pennsylvania Republican.
As a legal matter, Santorum is correct here. Other than the Supreme Court, all of the Federal Courts are the creation of Congress and Congress can create or abolish courts at their own will (although the added fact of Constitutional life tenure raises the question of what happens to Federal Judges who sitting on a court that was abolished by Congress). This has happened several times in American history as the court system has expanded, contracted, and expanded again to fit the needs of a growing nation. Santorum isn’t talking about reform the judiciary for efficiency’s sake, though. He’s talking about eliminating judgeships because he doesn’t like the decisions those judges have made. It’s the kind of partisan conflict over the judiciary that we haven’t really seen since Thomas Jefferson did battle with the Federalist-dominated judiciary in the early 1800s. As Dave Weigel points out, it’s also an idea that Newt Gingrich has been putting forward for years.
There’s something just a little dangerous about politicians talking about retaliating against the judiciary in this manner because they don’t like their decisions. While Santorum talks about judicial usurpation of the Constitution, this strikes me as a pretty clear example of complete disdain for the power of the Judiciary under the Constitution. Santorum’s suggestion that the Judiciary is somehow less important because it’s listed in Article III is perhaps the silliest argument of all. Yes, it’s true that there are fewer specific powers granted in Article III than in other parts of the Constitution, but that does not obviate the fact that the Judiciary is a co-equal branch of government, and that it retains the power to void Congressional enactments. That suggests that judges are more than just the pawns of Congress that Rick Santorum and Newt Gingrich would like them to be. Neither of these men are likely to be President, which is thankful for many reasons, but their ideas about the judiciary are very popular inside the Republican Party these days, and the fact that people take ideas like this seriously should bother any reasonable person.
