The courts have long been a convenient whipping boy for the far right. When the courts rule in a way they don’t like, they often propose legislation to limit the authority of the judicial branch, as Republicans in Wisconsin are now trying to do with a new bill:
Funny, when it comes to the federal courts, conservatives like to argue that courts should be limited because they aren’t elected at all. But when they are elected at the state level, it just isn’t by enough people. And isn’t it interesting how the very people who claim to revere the constitution so much object to one of its most central and important provisions, the establishment of an independent judiciary? That was done quite intentionally and much discussed in the Federalist Papers. In Federalist 78, Hamilton was as blunt as can be about this issue:
With some of their major legislative achievements thwarted by trial courts in the past two years, Wisconsin Republicans have been looking for ways to rein in local judges, particularly in liberal areas such as Dane County.
Since 2011, circuit court judges have blocked all or parts of laws backed by Republicans that required voters to show photo ID at the polls, limited collective bargaining for public employees and expanded the governor’s power over administrative rules. Under a measure announced last month, such injunctions would be automatically stayed as soon as they were appealed – meaning laws that were blocked would be put back in effect until a higher court issued a ruling.
Grothman argued that currently circuit court judges elected by only a fraction of the state’s population have the ability to block laws enacted by a Legislature and governor chosen by a majority of the voters.
“It seems inappropriate that a circuit court judge elected by a tiny portion of the electorate can put things on hold,” he argued.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
They love the constitution — until they don’t.