We have three branches of government because we don’t trust one, or even two, to do the people’s work when it comes to a government of the people, by the people, for the people. Our government’s system of checks and balances is based on the idea that the dispersal of power protects the public, and that absolute power may, as the saying goes, corrupt absolutely.
The judicial branch in particular stands as a bulwark against the tyranny of the majority. When the legislative and executive branches, meant to represent the majority, overreach and threaten to trample on our individual rights, it is incumbent upon judges to step in and rebuff those attempts. Think, for instance, about a federal law that says it is illegal to burn an American flag in public. Even if Congress passes this law and the president signs it — as happened in 1968 — it violates our individual right to freedom of speech. This is the moment we need judges to step in and vindicate those rights by declaring that law invalid. Otherwise, our rights can be squashed with little recourse.
The Supreme Court has long cautioned Congress against using funding decisions to attempt to influence judicial decision-making.
This week, Speaker of the House Mike Johnson floated the idea of hobbling our lower federal courts and hence undermining our delicate system of checks and balances. He made these comments, not coincidentally, amid numerous decisions by federal judges to, at least temporarily, halt certain actions by the Trump administration. The administration’s efforts to use the Alien Enemies Act to deport foreign nationals, to end birthright citizenship, to fire federal workers and to put a halt to certain federal spending have all run into judicial roadblocks, at least partially or temporarily halting the administration’s plans.
Johnson told reporters: “We do have the authority over the federal courts, as you know. We can eliminate an entire district court. We have power of funding over the courts and all these other things.” Johnson is largely correct: The Constitution established only the Supreme Court and left it to the legislative branch to create lower federal courts. Congress does control the purse strings and could attempt to defund federal courts, though it cannot cut the pay of federal judges while they are in office. And Article III judges, meaning judges nominated by the president and confirmed by the Senate, can only be removed via the impeachment process.
But if Johnson and other Republicans attempted to follow through on this idea, it would erode the ability of the judicial branch to serve as a true check on the legislative and executive branches. The Supreme Court has long cautioned Congress against using funding decisions to attempt to influence judicial decision-making. Johnson’s proposal could be but one step on the way to a more authoritarian style of governance.
Even short of abolishing certain lower federal courts, which Congress has done in the past, lawmakers can do plenty to hobble the work of the judiciary. Many federal judges have significant caseloads, and any cut to the funding of the federal court system could hamper their ability to function and send a chill through the judicial system. Congress could also strip lower federal courts of jurisdiction to hear certain types of cases. This process, called jurisdiction stripping, removes a swath of cases from a federal judge’s purview. Congress could, for instance, prevent lower federal courts from weighing in on disputes involving the Voting Rights Act. None of this means that federal judges should operate in an unchecked vacuum. First, if a judge abuses their power, impeachment is the mechanism to use to remove that judge. But as Chief Justice John Roberts reminded us recently, impeachment is not a remedy for disagreement with a judicial decision. Second, if Congress disagrees with a court’s interpretation of a piece of legislation, it can pass new legislation. Third, if lawmakers believe that courts are misinterpreting the Constitution, they can amend the Constitution. That is an arduous and rare process, but it is an available remedy to check the judicial branch. While authoritarian regimes thrive on weak judicial systems, strong democracies thrive on robust ones. Johnson later tried to downplay his comments as merely an observation about congressional authority. But even if Johnson ultimately drops all such proposals, his initial threat alone was pernicious. The mere suggestion that Congress could retaliate against a co-equal branch could make judges think twice before issuing decisions against the interest of the legislative branch. It is not unreasonable to hear Johnson’s comments and think that one party is attempting to control one of the last backstops against many of President Donald Trump’s attempts to enlarge the power of the executive branch. When members of the political branches disagree with federal judicial decisions, the solution is to attempt to pass or repeal legislation through a deliberative process, not to attempt to erase the power of the federal judiciary. While authoritarian regimes thrive on weak judicial systems, strong democracies thrive on robust ones. To protect democracy, we must protect the main safeguard of democracy: a strong judicial branch. Gutting the judicial branch will gut its ability to protect the public from majoritarian overreach.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
