Mark Levin is going off on President Obama’s statement about how bad it would be if the “unelected judges” threw out Obamacare.
That immediately set off an alarm that this was a trap – can you name the Republican presidential candidate who used almost the exact same words to discuss that throwing out prayer in school was done by “eight unelected and, frankly, unaccountable judges”
Here is a hint:
http://streamingradioguide.com/startingover/?p=3535
Mark Levin then briefly touched on FDR’s attempt to “pack the Supreme Court” when the Court threw out the parts of his “New Deal” as being beyond what the Federal Government had to the power to do.
It’s easy to fall into the trap thinking that there are 9 Supreme Court justices appointed by the President and approved by the Senate because that’s what the Constitution says. That’s only partly true.
How the US Federal Courts operate is entirely determined by Congress.
Article I, section 8 – Powers of Congress
“To constitute Tribunals inferior to the supreme Court;”
Article II, Section II – Powers of President
“He shall have Power, by and with the Advice and Consent of the Senate, to […]nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Article III, Section 1 – Judicial Powers
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
So other than requiring a Supreme Court with an unspecified number of members and stating the types of cases the Supreme Court would hear without going first through a lower court, the rest of the Federal Court system and how it works is under the control of Congress.
Changing how the Federal Judiciary works, and limiting their jurisdiction is entirely within the power of Congress to determine. When Republicans controlled the House, Senate and Presidency, they could have put substantial limits on the ability of Federal Courts to do things (like listening to the emanations from a penumbra to create “rights” out of whole cloth), but they didn’t.
Doing something that bold would very likely create an immediate crisis – since the Courts have given themselves the power to invalidate the laws of Congress and states (including Constitutional amendments to State Constitutions), then if Congress passed a law saying that the Courts don’t have the power to invalidate laws except under very narrow situations, and then the Courts invalidate that law – we no longer have a functioning government.
Stating that “unelected judges” of the Supreme Court is a negative is very odd coming from a professor of law and sounds like a prelude to an attack on the Constitution itself, one he was vowed to “protect and defend”