Fake little presidents in black robes

After getting shellacked in the 2024 elections — losing the White House, Senate and House — the left is back to its old playbook of judicial activism. Only this time, leftist judges are not legislating from the bench, they are playing fake president from the bench: ordering the gender mutilation of children, directing non-profits to fund foreign aid assistance, barring the president’s treasury staff from viewing its own payment records and enshrining a host of other insane policies.

The American People, Congress, President Trump and his administration are justly outraged by the many abuses of judicial power.

The founders understood that the sinful nature of man left him susceptible to the temptation to abuse power. Therefore, they structured our government with (1) separation of power, and (2) checks and balances. So, what power does each branch have to correct this problem of judicial usurpation of presidential power?

The first line of defense lies within the judiciary itself since the problem originated there. First, the trial judges in cases in which power has been usurped should correct their own unlawful orders. Second, if they do not, then appellate courts and the Supreme Court must reverse them. Of course, the Supreme Court cannot reach down into a pending case on its own initiative. It must be asked to do so by one of the parties to the lawsuit. But when appeals and writs are filed, the Supreme Court would be wise to police its own branch, because if it does not, the other branches are fully capable of correcting this abuse of judicial power.

The executive branch has an interest in protecting its own power and there is precedent for doing so. President Lincoln famously declined to follow the courts in Ex parte Merryman, President Jackson let the State of Georgia defy the Supreme Court’s Worcester v. Georgia tribal lands ruling, and even President Obama engaged in a soft threat against the Supreme Court in the Obama Care case. Thus far, Trump has said he will not disregard unconstitutional court orders, which means the problem must be addressed by the Supreme Court or the legislative branch.

Congress has many tools to address judicial activism. The first is the power of the purse to reduce funding to a recalcitrant judiciary if it fails to police itself. The constitution provides that compensation for judges and justices “shall not be diminished during their Continuance in Office.” However, it is entirely permissible for Congress to freeze judicial salaries and reduce the overall budget for the judicial branch by any amount and force the court to maintain its salaries commensurate with the Constitution but reduce its budget in other areas.

Speaking of Congress’ power of the purse, President Trump, Speaker Johnson and DOGE might jointly investigate fraud, waste, and abuse in the judicial branch and let those findings drive cuts in the judicial budget. That prospect might encourage the Supreme Court to better police its own branch. 

Of course, Congress has many other options to “check and balance” the judiciary, including its ability to limit the jurisdiction of federal courts, reorganize the circuits, add judgeships, sunset judgeships, limit the ability for single courts to issue nationwide injunctions, investigate judges and even impeach and remove bad behaving judges.

Some say Congress cannot impeach judges for their rulings in cases. History says otherwise. In fact, the very first federal judge impeached and removed from office was Judge John Pickering in 1804 for his ruling in a case that defied the law. The articles charge that Judge Pickering ruled “said act of Congress not regarding, but with intent to evade the same,” and that he ruled “contrary to his trust and duty as a judge of the said district against the law of the United States and to the manifest injury of their revenue.” The same generation that drafted and ratified the impeachment and removal clauses knew them best and used them to remove Judge Pickering for his radical rulings. The same can be done today.

Preferably, the executive and legislative branches would not need to act, because their actions would reduce the power and prestige of the entire judicial branch — not just the bad judicial actors. In order to avoid that scenario, the Supreme Court must engage and get its own branch in order.

Phillip Jauregui is senior counsel at AFA Action’s Center for Judicial Renewal. He is an expert in constitutional law, judicial policy, and non-profit coalition building. He worked in the judicial branch as a law clerk and also served in the executive branch as an assistant legal advisor. Phillip was an organizer for the Judeo-Christian Council for Constitutional Restoration Inc., which was dedicated to stopping judicial supremacy for the next generation. He served as executive director of the Judeo-Christian Council and as coalition builder for ValuesVoter.org. He has served as a guest host for talk radio shows and has appeared on Fox News, CNN, CNBC, ABC, and other news programs.

This article appears here in the Washington Times.