Rethinking Absolute Judicial Independence
... Unwittingly, Trump’s fight with the judiciary exposes a structural defect in our Constitution: a lack of accountability in the judiciary. Judges are agents of the people, but the people have no direct or indirect recourse to discipline or remove them. Commentators on the right have spilled gallons of ink on the dangers posed by unelected and unaccountable officials in the administrative state. They recently cheered the demise of the legal doctrine Chevron deference, which required courts to defer to agency interpretations of statutes. But they hardly noticed that power had merely passed to another group of unelected and unaccountable officials: federal judges. Judicial independence is a shibboleth that no one questions...
... Brutus described in the 18th century how the U.S. Constitution would create an unaccountable judiciary “unprecedented in a free country.” He objected that “they are independent of the people, of the legislature, and of every power under heaven.” Before long the judges would “feel themselves independent of heaven itself.”...
... since the Warren Court years, federal judges have regularly made public policy. Federal courts regulate such matters as state implementation of the death penalty, state marriage licenses, and Christmas decorations on public property, to name just a few examples. The rise of substantive due process in the late 1800s and the incorporation of the Bill of Rights against the states in the 20th century markedly expanded judicial power...
Removal by both houses is not a panacea, but it would be a good start in making the judges answerable for their conduct.
Related
Trump Is Right To Push Back Against Judicial Supremacy
The Judicial Insurrection Is Worse Than You Think, by John Daniel Davidson, The Federalist, 20 March 2025.
If Supreme Court Ignores The Constitution, Trump Should Ignore Them