This is quite true and has proved to be a problem. It wasn’t supposed to be as such though. Under Madison’s original arguments in the Constitutional convention, the judiciary needed to be an independent branch. I think his arguments still hold. That is the USSC should be independent. The problem though is that the USSC has taken upon itself to make law as opposed to negate law. The original arguments of Madison were consistent, the Bill or Rights made it less so, the subsequent amendments made it even more inconsistent and activist judges use that inconsistency for their own purposes.
Case in point, California’s gay marriage law. Under the original constitution and per Madison’s arguments, there would have been no federal case. It would not have fallen under Federal jurisdiction. However the due process clause extended the equal protection clause of the 14th Amendment to the states. The equal protection clause implies (to some) that making a discrimination between the legislative definition of marriage and other definitions is prohibited. The final stroke is judges who decide to extend legislation to areas it was not intended rather than negate it. So a humble judge who thought that California’s law was unconstitutional would have negated California’s marriage law. Instead we have judges like Breyer who say, "you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."
So all that to say, the problem we have today is not necessarily judicial independence. The problem is judges who chose not to understand the premise of the constitution is that the branches check each other and where they don’t check each other, they balance each other. Brutus is arguing only one side, that there is insufficient balance once the judges are appointed. History has proven he is correct.
56 I have, in the course of my observation on this Constitution, affirmed and endeavored to show that it was calculated to abolish entirely the state governments and to melt down the states into one entire government for every purpose as well internal and local, as external and national.Brutus is correct. National supremacy was Madison’s stated purpose at the constitutional convention. Madison – "the highest prerogative of supremacy is proposed to be vested in the National Govt." Madison’s argument that "states rights" would only mean as much as the National Government said they would mean has proven correct.
And with that out of my system, it’s on to the . . . .
I think an amendment to the constitution is required. Congress or the states are insufficient here, I think. In the absence of law there is liberty. We are free to do as we can. Laws only serve to limit our options. Some limits are necessary and generally agreed upon. Where they are not generally agreed upon, there should be no law. At a minimum the constitution should be amended such that the USSC can only nullify laws rather than extend them.
I’ve toyed with this one. Two justices elected by an electoral college, every two years for a term of eight years with the president appointing the odd member above eight members make sense to me. That, by itself, would make the judges accountable but if they were to extend law rather than negate it, as the branch of last resort, they would have more power than the legislature. That would not be good. No set of words is a guard against tyranny.
The problem is that the court has usurped powers definitely NOT granted them by the Constitution and, thus far, few have been willing to challenge them on it!