Sen. Mike Lee: Lawmakers Have Themselves to Blame for Judicial Overreach

The U.S. Supreme Court in Washington on March 17, 2020. Tom Brenner/Reuters

The Supreme Court has been politicized in recent decades as it delves into social disputes usually left for other political branches of government, and Congress has themselves to blame, Sen. Mike Lee (R-Utah) told The Epoch Times.

“I actually think we’re a significant part of the problem,” Lee said in an interview with “American Thought Leaders” broadcasted on Thursday night. “We’ve been under reaching. ... For decades, we’ve been delegating out our power, we’ve been passive in response to executive and judicial overreach, but even worse, we’ve enabled, we facilitated, we’ve even created, in many instances, that judicial and executive overreach.”

Lee said Congress has in many instances surrendered their legislating authority to the executive branch of government. This has led to the executive, the judiciary, and administrative agencies expanding their reach in order to fill the void left by lawmakers.

“The far more common type involves a delegation to the executive branch. We pass a law that says, in effect, we shall have good law in area X and we hereby delegate to commission or department or division Y the power to make and interpret and enforce rules carrying the force of generally applicable federal law in that area,” Lee said. “And from that moment forward, that division or department, or commission, is the lawmaker, and is also the law enforcer.”

This comes as President Donald Trump and Senate Republicans engage in a fierce battle to fill the vacancy in the nation’s top court left by liberal Associate Justice Ruth Bader Ginsburg. If Trump is successful in confirming a nominee onto the bench, it could result in a conservative lean for years to come.

The president and Senate Republicans have made considerable efforts to change the composition of the judiciary, by nominating and confirming younger conservative judges, in order to shape the long-term direction of the country.

This move has drawn much criticism from progressives in the country. Since taking office, the Senate has confirmed 218 federal judges nominated by Trump, including 53 appellate judges, and two Supreme Court justices.

The Utah senator said people have taken more interest in and have become more emotional about court decisions in recent decades because judges have taken a more prominent role in resolving certain social disputes, taking debatable matters beyond disputes, and tackling questions that are ordinarily left for the political branches of government. The federal government and states have also played a role by asking courts to resolve their political disputes.

This has ultimately resulted in a public perception that the courts are politicized. Lawmakers, and even the president, have also added fuel to the flame with some of their remarks.

Earlier this year, Senate Minority Leader Chuck Schumer (D-N.Y.) received widespread criticism when he appeared to threaten two of the Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, during a speech at a nearby pro-abortion rally, suggesting that they may face consequences unless they rule the way he wants. He made the speech on the day the court was hearing oral arguments in a case challenging Louisiana’s regulation of abortion providers.

Trump, similarly, has referred to some federal judges as “Obama judges.” His remarks received pushback from Chief Justice John Roberts who defended the independence of the judiciary.

“The judiciary is supposed to be the least dangerous branch because it looks in the rearview mirror,” Lee said. “It doesn’t look forward. In other words, it’s not there as a policymaking body. It’s not there to say this is how things should be and must be and we'll be moving forward. It’s there to look in the rearview mirror in the sense of saying, as of the date in question, the law said X.”

He believes judges are there to decide what the law said at a particular time and what particular words meant at the time they were passed into law, or put into the U.S. Constitution. This would make issues in dispute less controversial and less of an emotional exercise.

“If instead, the judiciary is out there looking for ways to radically change our culture, or to decide controversial issues of social policy. Yeah, you’re gonna have a lot of emotion behind it. I think that’s unfortunate. It’s also unnecessary,” he said.

The Trump administration and Senate Republicans have decried the impact of judicial overreach or judicial activism on a number of crucial policies. This is particularly seen when a single federal judge rules beyond the scope of a particular case, in some orders known as nationwide injunctions.

Nationwide injunctions are a fairly new concept that initially emerged in the 1960s. Scholars have not found an example of judges issuing nationwide injunctions in the first 175 years of the Republic, according to former Attorney General Jeff Sessions. The use of nationwide injunctions to block federal policies have become increasingly frequent after Trump took office in 2017. In the three years of his office, the administration has seen more than 55 nationwide injunctions issued against them.

In contrast, an average of 1.5 such injunctions were issued per year against the administrations of Presidents Ronald Reagan, Bill Clinton, and George W. Bush. Meanwhile, the administration of President Barack Obama faced about 20 nationwide injunctions—or an average of 2.5 per year—during its eight years, according to Attorney General William Barr.

As part of the road to fix the perception of the court, Americans need to change the way they understand what judicial power is, Lee said.

“It’s not there, to come up with a set of rules to govern society there. They don’t come up with rules. They decide what the rules that have already been written say,” Lee said. “That distinction between those two things is when we’ve overly politicized the court, that’s why we’ve got such a problem today.”