Judicial Reform Part 1 – ProFamily Legislators Conference: Today we’re sharing part one of a presentation with David Barton and Scott Gaylord from the Pro-Family Legislators Conference. How do we fix the court system? Tune in now to find out!
Air Date: 1/07/2019
Guest: Scott Gaylord
On-air Personalities: David Barton, Rick Green
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Transcription note: As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Faith And The Culture
Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy, faith, and the culture, always from a biblical, historical, and constitutional perspective.
My name is Rick Green, a former Texas legislator. Normally here with David Barton, America’s premier historian, and Tim Barton national speaker and pastor. But we’re actually going to be bringing you today’s program from the ProFamily Legislators Conference. We brought you a few of these presentations that were just amazing that we got to see and hear and that we brought to the legislators. These are speakers from across the nation, experts in their fields, training and equipping these legislators to go back to their states and implement these great policies and ideas.
And then of course the legislators are exchanging ideas and it’s kind of an iron sharpening iron experience. In fact, next year we encourage you to send your state rep or senator there. Let them know about it. Have them go to ProFamily.org or just go straight to WallBuilders.com and learn more about the legislators conference.
But what we’re going to bring you today, we’d like sure in these presentations with you our listeners here at WallBuilders Live. We’re going to bring you one that has David Barton and Scott Gaylord. They’re talking about judicial reform. How do we fix the court system? Let’s dive in right now. We’re going to take you out to the legislators conference and you’re going to be listening to David Barton and Scott Gaylord talking about judicial Two Problems With the British Judicial System
Okay, guys, let me start with you. We’ve been doing a lot of mini sessions to get sessions started, so let me start this one with a quick mini session. Let me take you back to the American War for Independence. Why is it that America did the Declaration? Why did we separate from Great Britain? The reason we separated from Great Britain, and nearly every single textbook today is a unitary reason, we’re told that it’s because of taxation without representation. That’s why we separated.
Now, that reason is sufficient. Only partially. What you’ve got is in the Declaration of Independence you have 27 reasons that they gave, 27 grievances, on why we separated from Great Britain. We teach taxation without representation. May I draw your attention to what gets more attention? Now, there was domestic indirection – nobody pays attention to that, suppression of immigration – we looked to that last night, what the states did with that. There were 11 times more listings of legislative abuses and why they separated, there were seven on military abuses, and there were four on judicial abuses.
Interestingly, mentioned four times more often than taxation that representation is, “We don’t like what the British judicial system is doing to us.” So, that was four times more frequently mentioned. And when you look at what those judicial abuses were you’ve got to go back to Sam Adams. Sam Adams in 1765 started a movement to have a different kind of judiciary in America.
Starting in 1765, Sam Adams crusaded on two points that were wrong with the British judicial system. He said the problem with their system is they have lifetime appointments and they are not accountable to the people. Does that sound familiar with where we are now? Now, that was the crusade he had going back then – “We can’t have a judiciary system that’s not accountable. We can’t have a judiciary system that has lifetime appointments.”
And, by the way, if you think federal judges have lifetime appointments I challenge you find anywhere in the Constitution that says that. It says exactly opposite. Article 3 says they have appointments for the duration of good behavior – not lifetime appointments. As long as they act right, do what a judge is supposed to do, they can be there. If they don’t, they can go off.
If you want an interesting study, study the first 97 impeachment investigations in the history of the US Congress – why they were taking judges off, what was considered an impeachable offense, for the first 97 impeachment investigations.
Nonetheless, going back to what Sam Adams said, he had this crusade going for 11 years before he wrote the Declaration of Independence. So, the Declaration of Independence lists four judicial abuses that they felt were happening wrong. And significantly, when these guys wrote the Declaration, right then they then returned to their home states and started writing their state constitutions because when they separated from Great Britain they wiped out all British governments. They needed their own independent government.
Which, it’s interesting to read the constitutions starting in 1776 in the various states and see what they said about judiciary, see what state constitutions in their original constitution said about judiciary. And the one that I want to draw your attention to is the last one there – Massachusetts.
The Massachusetts Constitution, they met in 1779 to do the Constitution, they finished it and ratified it in 1780. The leading authors of that constitution, Massachusetts Constitution, were Sam Adams, John Hancock, John Adams, Robert Treat Paine, and a number of others. The Massachusetts Constitution is the oldest constitution in use today. It is seven years older than the U.S. Constitution. We’ve been 231 years under the U.S. Constitution. Massachusetts still has their original constitution. They’re still using the 1780 constitution today. Unlike other states they have not had different constitutions and replaced them. Now, I would argue that Massachusetts doesn’t use their constitution, but they still have their constitution.
The Philosophy in the Opening
It’s interesting to see the philosophy that you find in their opening part. The Declaration of Rights is what they put at the start of the Constitution. This is the people’s rights. This is what the people have a right to and the Constitution is based on the rights of the people to protect those rights. Article 5 of the Declaration rights, look what it says.
It says, “All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority – whether legislative, executive, or judicial, are their substitutes and agents and are at all times accountable to them.” Notice they said “judicial”. There are substitutes and agents for the people and they’re at all times accountable to the people. I would argue that most states today do not have accountable judiciaries. They claim to be an independent branch and therefore they are not accountable and they’re not accountable to legislature, they’re not accountable to voters, that’s not the philosophy.
The philosophy is all three of our branches are accountable to the people. That’s why we’re doing this constitution. And again, that constitution is still active and alive today in Massachusetts.
So, when you look at that aspect, it’s interesting that when the Federalist Papers were done to explain the federal Constitution, the three authors of the Federalist Papers took the same position the Massachusetts guys and the other founding fathers had taken. And when you look at what they said about the branches in the Federalist Papers, they said, Federalist 51, the legislative authority necessarily predominates.
Now, may I point out “predominates”. What does that mean? Stronger than the others. Already we can say that three branches are not co-equal because one predominates. If you have one that predominates over the others are not coequal.
But let me add the other part to that. Go to Federalist 78, it says, judiciary is beyond comparison the weakest of the three departments of power. Now, if it’s beyond comparison the weakest, tell me how they’re coequal. If one predominates and the other is beyond comparison the weakest, you don’t have three co-equal branches. There is nothing in the founders writing to substantiate what we call an independent coequal judiciary. It just doesn’t exist. That’s modern stuff from the 20th century, particularly started coming out in writings in the 1920s.
Anybody in Office Is Political
It’s interesting thing when you do historical studies and constitutional writings that’s what you find. So, think about your judiciary today in your states and they tend to claim to be an independent branch, “We don’t want to be political”. I’ve got news for you – anybody in office is political.
I don’t care what they are, the guys in the courts have their own political opinions, persuasions. If they are not accountable, they will implement their politics into policy whether that be justice Kennedy through what he did with so many swing decisions on the Supreme Court. The nation now lives under the philosophy of Justice Kennedy – not under the constitutional philosophy, not under the philosophy of the people. He found it fine to strike down 32 state constitutional amendments on marriage and give his own definition. See, they all have political opinions.
So, that’s what the founders had back then – beyond comparison it’s the weakest. They continued, “The general liberty that people can never be in danger from that quarter.” Now, that’s the way it’s supposed to be, but that’s not the way it is today. Probably the final word branch in most states the judges while the judges said the law is unconstitutional so that’s what it’s got to be. That was never allowed in the founding era. And again, you go back and look at the first 97 impeachment investigations done by the U.S. Congress you find that.
They continued Federalist 78, “The judiciary has no influence over either the sword or the purse, either the direction, or the strength, or the wealth of society. And it can take no active resolution whatever. It may be truly said to have neither force nor will.” That doesn’t describe any judiciary in the United States I know of today and yet that was the original distinction they made for judiciary.
The Co-equal Branches Myth
So, when you look at where it is, the legislature * judiciary is beyond comparison the weakest. And the myth that we’re told is the three branches are co-equal, that’s not there. That it’s an independent branch is not there. And yet we have a number of plans that have moved that way.
I was in Tennessee not long ago testifying for Tennessee. They’ve gone– there’s the Missouri Plan, there’s a Tennessee Plan, there’s a modified Tennessee Plan, a modified Missouri Plan. Go back to this as the basis of what you do. All the branches are to be accountable at all times. They’re all substitutes for the people and they’re to be accountable to the people. Anything that makes any judiciary in the state less accountable to the people moves away from the founding philosophy of the people of the sovereign power.
I’ll close with this Thomas Jefferson. He said, “It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also.” So, if you have an independent judiciary, you have an absolute judicial. Now, there is a sense of independence that can be defined. But in the original definition of “independent” it doesn’t mean you’re free from the control of or free from the influence of. Anything that’s free from the influence or control of the people is not a good thing in a republican form of government. And that’s why, again, in the Declaration of Rights they said people are in charge of all three branches.
So, having said that, judicial accountability, got some great stuff coming I think that will provoke you to think about that. But I wanted to give you a large historical background on where we are today in the way we treat judiciary and defer to them is a new era in American history. And we get away from history, we get the wrong results. Rick–
Alright, Scott Gaylord is a professor of law at Elon University, an expert on the First Amendment and equal protection, and a lot of other things in the Constitution, but we didn’t give him enough time to do an entire constitution class today. But he is going to hear some great things with us on judicial reform. So, you all please welcome Scott Gaylord.
Figuring Out Where Your State Is
Good morning. Heading towards afternoon – not there yet. I hope everyone is having a good morning. I want to thank the Pro-life Legislative Network for inviting me, and for each of you for taking the time to be here, and for all the work you do with respect to pro family causes. As husband and father who has been blessed with 10 children, it’s an issue near and dear to my heart.
So, I’m always excited to follow and keep up on what’s going on across the country. And particular with the topic today with respect to the judiciary and the ever increasing role that the judiciary is playing with respect to not just family issues, but just issues across the board. You name it, it seems like the courts have been involved with it. At the federal level we hear about that the most, but also at the state level and certainly in important areas for us to think about, and reflect on, and hopefully be able to go over some of the different methods.
As David mentioned, there are a variety different methods out there. Four main ones that folks use and then a myriad variations that come off of those. And to think and reflect on what’s going on in your state and to encourage you to really think carefully about the judiciary – how is it functioning in your state? Is it working well? Where are the problems?
And then think about that in relation to your system of selecting and retaining judges and just go through and talk about– give a little bit of the history building off of David’s talking about in particularly the shift from the federal model to judicial elections in the mid 18th– sorry, mid 19th century 184o’s, 1850’s you had a big shift, and sort of the historical reasons of why that occurred. And then focus a little bit on judicial elections, in particular, partisan elections. One reason I think those are useful and can be a good source of promoting independence and accountability. And then talk a little bit about the Missouri Plan or merit based election in the time we have.
So, that’s sort of the plan as we go forward. My starting point is the idea that there is a political dimension to the judiciary. I think it’s hard, sometimes folks will say, “No, no, the judiciary is the third branch, it’s independent, it’s not political in nature, it needs to be insulated from politics.” And maybe in some strange ideal world somewhere that would be possible. It’s not the world we inhabit currently, so it’s hard to say it shouldn’t be political when it is.
And since it is and plays an important role, you can see this starting at least with the Warren court and probably for the court wading into a whole bunch of different social political issues. Some may remember back in the day there used to be an expression, “There ought to be a law”. Does anybody remember that expression, right? Well, why? Well, because people turn to their legislators, right? If there were issues, if there were problems that needed to be addressed, we’d look to the legislature to really take care of it and fix those types of problems.
Nowadays what you hear more frequently is, “There ought to be a constitutional right”. So, whatever it is, both sides of different debates come in because the courts have taken over such a prominent important role, “We’ve got to litigate this. We’ve got to get the court to agree with us and once it’s constitutionalize it’ll be protected and insulated from any types of attack.”
And I think that shift is important to be aware of and we see these types of political decisions coming down. Whatever one’s view, there’s a spectrum of views across the country, obviously, but things like Obergefell. Those in Texas may remember *, this was restrictions on abortion that just got struck down by the United States Supreme Court. Citizens United, Justice Stevens went apoplectic with respect to Citizens United and it’s going to be the downfall for justice and democracy across the country.
Bring A Speaker To Your Area
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Plenty of Examples
Certainly go back to Roe vs. Wade or Planned Parenthood vs. Casey, alright, very political decisions. So, the judges themselves end up dealing with and deciding issues that are political, one, and then the method of selection is itself political. Recent history gives us plenty of examples with respect to that. So, you may know that Judge Kavanaugh, now Justice Kavanaugh, * smiling mug, that whole confirmation process and the hearings were incredibly political in terms of a method of selection.
A lot of times you’ll hear folks talk about the federal model held up as the ideal and the paradigm. This is really what we should be going for and at the same time a lot of these same folks will say, “Oh, by the way, this is the model we should have. And we shouldn’t have politics in the courts.” Ta-da! Really? Is that possible? I don’t know. It doesn’t seem it because it’s not only Kavanaugh, you might remember Justice Gorsuch and Judge Merrick Garland, right.
The debate even before any Gorsuch hearings which has its own political nature about the judicial philosophy of Gorsuch and what’s the proper way to do it. But whether or not the Republicans in the Senate should have given a confirmation hearing. Highly political. And obviously, the president’s are trying to pick folks who will reflect their jurisprudential views or other things. But there are differences between judges.
And, as David was mentioning, need look no farther than Justice Kennedy, right? The swing vote on the court I think really highlights to people how important each justice is.
There’s a Difference
There’s a difference between a living, breathing, constitutionalist and a public meaning originalist, which Justice Kavanaugh talked a lot about in his hearings. You’ll get different views a lot of times. Not all the time, right. A lot of the opinions the court decides are 9-0. They get issued, the opinions are issued, first opinion this year issued by Justice Ginsburg 9-0, can anyone name it? Maybe if you’re a con law geek like me you might be able to if you follow this thing.
But why? No one cares about that one. It’s the political ones, right, these are the ones that get all the attention. And all of a sudden we can see how one vote, one justice, can make a huge difference in that outcome. And the people, I think, a lot of times, especially in states that go with elections think, “Why does somebody else get to pick as to which views should dominate?” Living breathing constitutionalists or somebody else.
Things like due process equal protection – extremely important and enshrined in the Constitution, but also heavily value laden as well. There’s no– as I use to tell my students, we don’t have any footnotes in the Constitution. So, you have those principles, they’re there. They don’t say that much, really important, but they don’t say– we can’t say, “Oh footnote two, equal protection includes the following things.” No, we don’t have any sense of that. The Constitution doesn’t have, as I like to talk about, the prolixity of a legal code. It’s not that detailed, it’s more of a general structure. And same for State Courts as well then and our focus will be on state courts in terms of the important work that they do.
Alright, state courts, this is the United States Supreme Court characterizing it, but they say common law they interpret statutes and they interpret the state constitution right. They’re the last arbiter of all things state constitutional. And as a result they have the same role, and the same importance, and all the more important to think about how they are selected in given situations.
Now, part of this and the role that the court has taken on over time can be traced back different places, but certainly it got some of its foundation in a famous case in 1803, Marbury vs. Madison. Chief Justice Marshall says it is emphatically the province and the duty of the judicial department to say what the law is. The power of judicial review gives the court a unique role in the system of government.
Who Guards the Guardians?
Now, it certainly was introduced, at least officially, Hamilton talks about it in Federalist 78 before, so it was in the founding ideas, but it gets expression in Supreme Court in Marbury vs. Madison. But the court doesn’t exercise that power again in a meaningful way until Dred Scott later on. So, the court used it– this was Section 13 of the Judiciary Act of 1789– but doesn’t really become a big political actor, it’s not getting engaged and overturning lots of legislation. Certainly today things are different than we have it.
But it gives the court certainly the power to have a check on the other branches of government. And if you get to have a check on it, again, the idea of a weakest branch is that’s a pretty good power. If you can tell the president, the executive branch, or the legislature that they’ve done things wrong and must stop doing whatever it is they’re doing, or be able to overturn their decisions.
When you have that power, I think original question, if the courts are supposed to and are going to under our system guard the Constitution, who guards the guardians? Alright, who’s going to serve as a check on the judiciary in that situation? As Justice Jackson famously said, “The United States Supreme Court isn’t final because it’s infallible. It’s infallible because it’s final.” It’s just we’re the last ones who get to say what’s going on. It doesn’t mean we’re perfect, doesn’t mean we always get it right, just the way the system – the buck stops here.
So, whatever we say, that’s it. But we can still get things wrong, we do things wrong. And certainly, criticisms of the federal system of government goes back to lots of different folks. Certainly Jefferson was not an advocate, Lincoln’s not an advocate, Brutus in the Anti Federalist Papers was really concerned about this system. It’s the one we have, but who’s going to be the check on the judiciary?
Well, I think three things possible. One is the integrity and self-restraint of the judges themselves, right. We’ve got to rely on the judges. Chief Justice Roberts talked about this during his confirmation hearings. It was the– you may have heard any or followed any of that– his view of judges as umpires who just sit in the back behind the plate calling balls and strikes, “Ball! Strike!” – and that’s about all you’re supposed to do. You’re not supposed to make policy. You’re supposed to be there and interpret the laws and rely on judicial self-restraint to cabin in the judiciary usurping the authority of legislative or executive branches.
Methods for Fixing the Problem
Notice we have to rely then on the judges and it’s a good thing to do. We hope we have, obviously, individuals who are willing to serve of great integrity, but sometimes maybe they go too far, right, and what type of check are we going to have? Impeachment is a possibility, certainly, under the Constitution, but extremely difficult. And really, for judges, not all that effective history will show us.
The Jeffersonian Republicans started to use it in the turn of the century, the 19th century. And they went after Judge Pickering, a district court judge from New Hampshire and he was impeached and convicted in the Senate. They then turned their attention to– this is an ongoing battle between the Jeffersonian Republicans. And the Federalists– they went after Justice Chase, associate justice Chase in the Supreme Court and he was impeached by the House, but was not convicted in the Senate. So, he survived it, but it really put a lot of tension and continued the tension and the politicization of the judiciary at that time.
And since then we’ve had, I think, 15 federal judges impeached, but only eight convicted. And none of them for their judicial decisions, none because they were too liberal, or too conservative, in their views. So, the extent you think judges are exceeding their constitutional authority – be it state or federal, impeachment is not going be a great way to do it in terms of freeing some type of accountability.
The other method, I think, and the one that, I think, is overlooked frequently, is this idea of selection and retention. How can you put some type of check on the judiciary? Well, think carefully about the methods we go to to pick them. On the federal side, the federal side is heavily focused on independence. And we’ll talk about why in just a second. And that’s certainly important, but if you want some type of backend check on it, the federal system doesn’t give you that.
We Need a System for the Test of Time
Again, for better or for worse. If the court’s loaded with folks you agree with, obviously then we’re happy. When it goes the other direction, now I’m not so happy. And we need a system that’s going to be able to stand the test of time going forward and states have that opportunity.
The court says in the recent decision, 2015, Williams Yulee vs Florida Bar, the debate about judicial selection has been going on for over 200 years. Hamilton wins, Hamilton gives us the federal model, but the discussion has been ongoing. Again, Jefferson, Brutus, and others, really worried about this and thinking what’s going to happen is you can get an oligarchy. You see this in Jefferson’s writings and in some in Lincoln as well that if you isolate the judiciary in this way then they can really take over and do what they will at some level, so that’s problematic.
They say in terms of the values, folks will have different values. You want to think about in terms of your states what values matter. I do think independence and accountability are two of the big ones. We certainly should worry, and think, and be concerned, about the qualifications and quality of the judges who are going to serve for us as recent empirical studies show. I’ll have some of those as slides. By the time we’re done it may be going at the speed of light. So, I can try to make the slides available.
But there are studies showing that across different selection methods there really isn’t that much difference in terms of quality. So, that hasn’t been a major consideration. You can certainly get some stinkers through any system of selection. Judicial elections can give you stinkers as well. The good thing is you can get rid of them if they’re really bad and relatively easily.
And then another fact you hear a lot – legitimacy of the courts. And a lot of folks pack different things into that as to what counts in terms of legitimacy. It may be diversity on the court, it could be a variety of different things. But think about what matters to you in your state. What’s the proper way to balance these things to come up with the best judicial system we can have going forward?
We Remember the Big Lines
They have mentioned terms of the federal model, obviously, in large measure a response to their experience with the monarch and King George. And you can see the federal model is sort of a direct response to one of the criticisms.
I think it’s just sort of a fun point with the Declaration of Independence we tend to remember those big lines. “When in the course of human events it becomes necessary for one people to dissolve the political bond…”, so that’s the intro. “We hold these truths to be self-evident that all men are created…” Right, all the big lines. And then sort of forget, oh yeah, there were grievances, “What were those again, I forget.”
But on the judicial side it’s really important because here is one of the grievances against the king. And if you notice the federal model is in direct response to that. So, the decision of the judge is dependent on his will alone. How do we take care of that? We’ll make it a blended power. We’re going to have the executive involved and the legislature through the Senate. And the Senate will play a special role in this as well.
Remember, pre 17th Amendment whenever we have reference to the Senate. We have a built in sort of federalism check because the senators were coming from state legislators at the time. So, that preferential role for the Senate was also a preferential role to help states have a direct participation in the federal government. We’ve lost that as well which I think hurts the process in some ways.
No reduction in pay while in office, right, you’re going to have a fixed pay. Again, why? Because the King could play with it. The power to be able to either appoint or to remove, particularly the power to remove, in some sense is the power to control. If I have the authority to unilaterally remove you from your position, I can control what you do. And if you don’t do what I want you to do, you’re gone, next person up. Put the next person in who will do what I want. And as a result you get * that way very easily and that was the problem under the throne.
All Some Type of Appointment
Obviously, lifetime appointment as it’s been interpreted that during good behavior you can keep that office as long as you’re going to want to. So, that insulates the judge and gives job security. Certainly, and I said impeachment which provides some check, but not a tremendous one.
At the time of the founding, the states all fell in line with appointments. I think that’s not surprising, that was the system that was going on. We see a variation – eight states went with legislative elections for the judiciary. So, again, concern with the central monarch, concerned about the power that the monarch has in that situation. But these states say, “You know, we’re so concerned about the executive. We’re going to put this over in the legislative branch and let the legislature have control.” Five others went with gubernatorial appointments, but all some type of appointment.
And in this process, accountability wasn’t a major concern at the time. On the federal side, it was all about independence, get the courts removed from control over the crown. We’ll throw in impeachment, so that’s there, that’s a possibility, but not overly worried about accountability. Because the view was the judiciary will be the weakest branch, right. It has neither the power of the purse nor the sword, as Hamilton talks about in Federalist 78 – neither force nor will. All they do is write opinions – what can that do? No big deal.
Judicial Reform Part 1 – ProFamily Legislators Conference
We’re out of time for today, folks. You’ve been listening to Scott Gaylord and David Barton there at the ProFamily Legislators Conference talking about judicial reform. We’re going to pick up right where we left off today when we get the conclusion of that presentation tomorrow, so be sure and tune in to WallBuilders Live tomorrow. We sure appreciate you listening today to WallBuilders Live.