On January 20, 2025, President Trump began his second term, having won the electoral vote and the popular vote, but in the next two months, his administration experienced an unprecedented 132 legal challenges by liberal judges.
Democrat Senate Minority Leader Chuck Schumer explained his strategy in a PBS interview, March 21, 2025:
“We did put 235 judges—progressive judges … last year on the bench, and they are ruling against Trump time after time after time.”
Justin Evan Smith, writing for The Federalist, March 21, 2025:
“Judge Boasberg’s ruling is just the latest example of a judge substituting his own political preferences for executive decision-making … (It) is not judicial review, but judicial rule — a clear case of a court attempting to override a core executive power in the name of politics.”
Is this the way the U.S. Constitution was intended to work?
There are seven articles in the U.S. Constitution.
The first article sets out the purpose of Congress, which is to make laws in accordance with the will of the people.
The second article authorizes the President – the Executive Branch - to carry out, or “execute,” the laws.
And the third article, defines the judiciary’s role as making sure the laws are carried out as Congress intended.
In 1801, John Marshall became the fourth Chief Justice of the Supreme Court and served 34 years.
He helped write over 1,000 decisions and advanced the concept of "judicial review."
Though his decisions were generally regarded as good, they did increase the power of the judiciary.
Opposing Marshall were Anti-Federalists who wanted to reserve more power to the States.
These included: Patrick Henry, Sam Adams, George Mason, and Thomas Jefferson.
Jefferson wrote to William Jarvis, September 28, 1820:
"You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy ..."
He added:
"Our judges are as honest as other men, and not more so .... and their power (is) the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control.
The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots."
A “despot” is someone with absolute and arbitrary power.
Jefferson wrote to Abigail Adams, September 11, 1804:
"Nothing in the Constitution has given them - the judges - a right to decide for the Executive, more than to the Executive to decide for them ...
The opinion which gives to the judges the right to decide what laws are constitutional ... not only for themselves in their own sphere of action, but for the legislature and executive ... would make the judiciary a despotic branch."
On October 15, 1788, James Madison warned:
"As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character.
This makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper."
Baron Montesquieu, the most quoted writer by the Framers of the Constitution, warned in his Spirit of the Laws, 1748, of uncontrolled judicial power:
"Nor is there liberty if the power of judging is not separated from legislative power and from executive power.
If it were joined to legislative power, the power over life and liberty of the citizens would be arbitrary, for the judge would be the legislator.
If it were joined to executive power, the judge could have the force of an oppressor.
All would be lost if the same ... body of men ... exercised these three powers."
Alexis de Tocqueville, author of Democracy in America, 1835, warned:
"The President, who exercises a limited power, may err without causing great mischief in the State.
Congress may decide amiss without destroying the Union, because the electoral body in which Congress originates may cause it to retract its decision by changing its members.
But if the Supreme Court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war."
The Union was plunged into a Civil War when Supreme Court Justice Roger Taney, appointed by Democrat Andrew Jackson, issued the infamous Dred Scott decision in 1857 that slaves were not citizens, but property.
President Lincoln objected to the Supreme Court in his First Inaugural Address, March 4, 1861:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court ...
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made ... the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of the eminent tribunal."
Jefferson warned Mr. Hammond in 1821:
"The germ of dissolution of our federal government is in ... the federal judiciary;
an irresponsible body ... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States."
Jefferson explained to Justice William Johnson, June 12, 1823:
"On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed ...
But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must ... The ultimate arbiter is the people."
A warning was given by George Washington in his Farewell Address, September 19, 1796:
"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any way particular wrong, let it be corrected by an amendment in the way which the Constitution designates.
But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
In other words, if the Constitution and laws needs to be changed, it should happen through the Amendment process -- preserving the majority will of the people -- rather than through the opinion of justices.
In the book, Judicial Tyranny, chapter titled “It’s a Judge Issue,” Phyllis Schlafly described justices usurping power:
“Twentieth-century judges developed the notion that when they put on black robes, they became wiser than the rest of us and can reign supreme over the other branches of government …
These supremacist judges developed the theory that our written Constitution is a living and evolving document, and that they have the authority to interpret it any way they choose …
The idea that whatever some judge says is ‘the law of the land’ began during the regime of Chief Justice Earl Warren …
Since Earl Warren’s erroneous pronouncement, a couple of generations of law students have been taught this heresy …
Liberals promote this theory very enthusiastically because it rationalizes the way activist judges impose policies on the American people that our elected representatives will not vote for …
The supremacist judiciary is the liberals’ way to bypass self-government.”
Phyllis Schlafly continued her explanation:
“The Founding Fathers did not write a Constitution that set up a judicial oligarchy.
They gave us a government based on the Separation of Powers. The mighty power of government was divided among three branches of government … Nothing in the U.S. Constitution justifies judicial supremacy.”
Justin Evan Smith, writing for The Federalist, March 21, 2025, stated:
“There is precedent for presidents pushing back against judicial overreach.
Abraham Lincoln ignored a Supreme Court ruling in 1861 when Chief Justice Roger Taney attempted to block his suspension of habeas corpus during the Civil War.
Andrew Jackson famously refused to comply with a Supreme Court decision in Worcester v. Georgia, arguing that the executive branch — not the judiciary — was responsible for enforcement …
The executive branch is not bound by a lower court’s political ruling, especially when it directly interferes with a lawful executive function.
The real threat to democracy is … a judiciary that believes it alone has the right to decide what the law is.”
President George W. Bush stated March 3, 2004:
“We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order.”
What is the remedy to judges usurping power?
Article 3 of the Constitution states:
“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.”
In other words, only the Supreme Court is created by the Constitution. All inferior courts are created by Congress, which also has the power to limit or abolish them.
Phyllis Schlafly continued in Judicial Tyranny:
“The Founding Fathers in their wisdom gave us the solution to this dilemma. All federal courts other than the Supreme Court were created by Congress, not by the Constitution. Whatever Congress creates, it can un-create or regulate.
Congress can decide what sorts of cases the federal courts can hear and not hear.
Article 3 of the U.S. Constitution gives Congress the power to define the jurisdiction of the federal courts.
There is a long record of Congress limiting or withdrawing the jurisdiction of the federal courts over specific subjects. This power has been used dozens of times throughout our history.
Several years ago, Senator Tom Daschle got a bill passed by Congress to take away jurisdiction from the federal courts over brush clearing in South Dakota. He didn’t want environmentalist lawsuits interfering with the way they fight forest fires in South Dakota …
Congressman Jim Sensenbrenner’s Real ID bill that passed the House takes away jurisdiction from the federal courts to hear environmentalists’ challenges to the completion of the fence on our southern border near San Diego.
No one challenged the constitutionality of that jurisdictional provision.
Limiting the jurisdiction of the federal courts over subjects where we don’t trust the supremacist judges is the number-one way to curb the imperial judiciary … (and) requires only a simple majority vote in both Houses of Congress …”
Schlafly added:
“In late 2004, Chief Justice William Rehnquist … included in his annual report one significant sentence …
‘There were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide Constitutional challenges to certain kinds of government action’ …
Rehnquist’s report implicitly confirms that Congress has the Article 3 power to limit jurisdiction on constitutional issues and take away from the federal courts the power to continue to do the sort of damage that they have been doing for the past several decades.”
David Gregoire, writing for LibertyOneNews, March 19, 2025, quoted Law Professor Alan Dershowitz:
“Alan Dershowitz ... asserted that Congress has the power to reshape the judiciary by adjusting the number and jurisdiction of district courts.”
TheGatewayPundit article March 20, 2025, stated:
“Florida Gov. Ron DeSantis has suggested that Congress could strip federal courts of jurisdiction. ‘Congress has the authority to strip jurisdiction of the federal courts to decide these cases in the first place.
The sabotaging of President Trump’s agenda by ‘resistance’ judges was predictable — why no jurisdiction-stripping bills tee’d up at the onset of this Congress?’”
Phyllis Schlafly concluded:
“The role that judges play in our system of government should be like that of baseball umpires …
But umpires are not permitted to change the rules of the game; the fans would not tolerate an umpire calling a batter out after two strikes.”
On October 15, 1991, during Senate confirmation hearings, Senator Thurmond asked Clarence Thomas about judicial activism, to which Thomas replied:
"The role of a judge is a limited one. It is to ... interpret the Constitution, where called upon, but at no point to impose his or her will or ... opinion in that process."
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