The judiciary has been described as the least dangerous branch. But that isn’t true. The Supreme Court has become a continuing constitutional convention, in which just five votes often turns the Constitution inside out.
The latest Supreme Court term was seen as a shift to the left. These decisions set off a flurry of promises from Republican Party presidential candidates to confront the judiciary.
For instance, Jeb Bush said he would only appoint judges “with a proven record of judicial restraint.” Alas, previous presidents claiming to do the same chose Anthony Kennedy, David Souter, and John Roberts, among many other conservative disappointments.
Sen. Ted Cruz (R‑Texas) called for judicial retention elections. Even more controversially, he suggested that only those before the justices had to respect Supreme Court rulings.
Extreme measures seem necessary because a simultaneously progressive and activist judiciary has joined the legislature and executive branches in forthrightly making public policy. The influence of judges has been magnified by their relative immunity from political pressure, including life tenure.