On Friday, Politico ran an encouraging story headlined, “It’s not just impeachments. Republicans are eyeing other ways to rein in federal judges.”
They’re trying. According to unnamed sources, Speaker Mike Johnson (R-La.) is likely to bring a short bill to the floor for a vote over the next few weeks. Titled the “No Rogue Judges Act,” the bill would prevent federal judges from issuing nationwide injunctions with effects far beyond the parties who brought the lawsuits. In other words, it would stop injunctions from being transformed into vast class actions.
On Saturday, Speaker Johnson appeared to confirm the bill was headed for a vote.
There are pros and cons. During the pandemic, we enjoyed several rulings from the Fifth and Sixth circuits that broadly enjoined various kinds of Biden mandates. If Darrel Issa’s bill becomes law, conservatives would also lose that power. On the other hand, conservative judges are less likely to issue nationwide injunctions, so on balance it would prune Democrats’ options more so than conservatives.
And lawfare is, after all, the Democrats’ favorite tool. So reduced court authority reduces opportunities for lawfare, benefitting conservatives most.
The fight is only starting. Congress holds power to define court jurisdictions and set rules like Issa’s bills limits on injunctions. There is a lot they could do, since only the Supreme Court is explicitly defined in the Constitution’s third Article.
“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.”
Congress controls the other courts. Congress can reshape them, reduce their jurisdictions, or even abolish them entirely if it wants (though it’d be political dynamite and practically unworkable). In other words, only SCOTUS is constitutionally immortal. The rest are legislative houseplants. Congress can water them, or not.
And they are thinking about the weed problem hard.
Remove all Liberal Activists Judges who try to abuse their Powers and overturn the will of the Voters
As their power wanes, extra-Constitutional powers will be all the Democrats are left with. While the Republicans might lose the same weapon, they should be winning more elections and more the victim of such lawfare than the employer of it.