How a Constitutionally Correct Judicial Branch Should Act

Article III, a very short and to the point Article of the Constitution, deals with the third branch of government the Constitution of the United States provides. That document plainly states that this branch is the weakest of all in its powers. This is the Judicial Branch. Yes, I know that is not the case today. The Supreme Court is created in the first sentence of this Article. That sentence also allows the Congress to set up “inferior” courts. This first paragraph is the source of the life term for federal judges, but makes the proviso that term shall be “during good behavior.” Obviously this has never been used to remove judges acting in their own interests. I cite the recent case of same sex marriage (Obergefell v. Hodges,2015) in which Ginsberg and Kagan refuse to recuse themselves even knowing that they had both performed same sex marriages in their roles as Justices, an obvious bias, and clearly not reflecting “good behavior” on the part of a judge.

Lets look at the assumed jurisdiction of that one case. Article III states that the power of the judicial branch shall “extend to all cases, in law and equity, arising under this Constitution, the laws of the United States …” Critical here are the words “arising under this constitution …” Prior to the decision handed down in this case there was no law in effect governing same sex marriage and such is never mentioned in the Constitution. In other words it would seem that the court had no Constitutional jurisdiction in this case.

Article III is quite clear in stating that the court shall decide matters of law and render “judgments.” It is never given the power to make laws.

The court has no power to set prison or fines nor, in fact render any verdict that includes punishments. The Article even goes so far as to give the power of sentencing to Congress in the one criminal case where the Supreme Court has direct jurisdiction: treason. Direct jurisdiction means that there are no intervening courts. A case of treason goes directly to the Supreme Court. Even in this case, the power of sentencing is given to congress. As a matter of fact, Article III addresses this directly when stating “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.”