Judges Behaving Badly and the Congress that Allows It

The U.S. Constitution provides that federal judges “shall hold their Offices during good Behaviour.” Right now a federal district judge and some of the judges on the U.S. Supreme Court are behaving badly. And Congress, which was to be a check on the judiciary, is letting them do so.

The Facts

A little over a week ago, Judge Callie Granade, a federal district judge, in a lawsuit against Alabama’s Attorney General, ruled that he could not enforce the state’s marriage laws. Then Alabama’s Chief Justice, Roy Moore, issued a directive to Alabama’s probate judges, who by law issue marriage licenses in that state, telling them that they were not bound by the judge’s ruling and should continue to uphold Alabama’s marriage laws.

The Law

Judge Moore correctly pointed out two reasons the probate judges were not bound by Judge Granade’s order. First, as I discussed last week, he rightly noted that the U.S. Supreme Court has even said that a federal judge’s order is not the “law of the land” and that state judges have a parallel duty to uphold the Constitution as they understand it. But second, he pointed out that the probate judges were not parties to the suit; they had not been able to present their arguments to the judge and therefore had not had their “day in court.”

The Problem – Bad Behavior

Judge Moore’s legal argument exposed Judge Granade’s power grab, but rather than repent, she aggravated the situation by adding the probate judge in her district to the lawsuit as a party, after the lawsuit was over. Then she ordered him to issue marriage licenses.

Let’s put this in a different context to show how extreme this is. Imagine you are a bystander to a car wreck. The two drivers sue each other. Then, after the lawsuit is over, you are added as a party, told that the trial proved that you somehow caused the accident, and then you are ordered to pay for the damages to the cars. You would be outraged.

That is why what Judge Granade did is not “good behavior.” But it is not the only bad behavior we have seen from judges. Seven of the nine justices on the United States Supreme Court have let her do it. By not staying enforcement of Judge Granade’s order, they have shown contempt for their own rulings about the limits on the binding power of federal court orders. There is no greater contempt for the rule of law than to show contempt for your own rulings!

Worse yet, these seven justices have shown their contempt for the dual sovereignty of the various states and the elected officials of those states who have their own, equally binding duty to uphold the Constitution, not uphold the rulings of rogue federal trial judges.

The Remedy

Federal judges are appointed for life, but only if they behave well. Showing contempt for the rule of law and the sovereignty of the states is not good behavior.

Federalist Paper 81 is instructive:

“Particular misconstructions and contraventions of the will of the legislature [by federal judges] may now and then happen; but they can never be so extensive as to … in any sensible degree to affect the order of the political system.”

But affecting our political order is exactly what Judge Granade has done and, more importantly, what she thinks she has a right to do. And members of our Supreme Court seem to agree. Their actions are reflective of an attitude increasingly all too common among federal judges.

Thankfully, the Constitution provides a remedy to protect us from judicial tyranny and unconstitutional encroachments on the sovereignty of the several states.

Again, Federalist Paper 81 is instructive. It follows the above-quoted statement by noting that the idea that federal judges should judge with restraint because of “the important constitutional check, which the power of instituting impeachments … and of determining them … would give to [the House and Senate, respectively.]”

It continues on:

“There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted (sic) with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”

Judge Granade has shown her contempt on the “order of [our] political system” and so have members of our Supreme Court by their acquiescence.

In my opinion, it is past time for those in Congress, who are supposed to uphold and protect our political system from “usurpations” by the federal judiciary, to begin to do their job and remove them for “bad behavior.”


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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