The growing tension between Congress and the federal judiciary hit a new level this week as House Speaker Mike Johnson floated the possibility of eliminating entire district courts in response to controversial rulings against former President Donald Trump. On Chicago’s Morning Answer, Dan Proft and Amy Jacobson welcomed former federal prosecutor and National Review contributing editor Andrew McCarthy to offer his legal and constitutional perspective on the matter.
Speaker Johnson’s comments came as part of a broader effort among Republicans to challenge what they see as judicial overreach—particularly by district court judges issuing nationwide injunctions and blocking Trump-era policies. While Johnson later clarified that his comments were meant to emphasize Congress’s constitutional authority to create and regulate lower courts, the reaction from both sides of the aisle revealed just how contentious this issue has become.
Andrew McCarthy brought deep insight to the conversation, explaining the legal framework underpinning Johnson’s remarks. As McCarthy pointed out, Article III of the Constitution gives Congress broad discretion over the creation and structure of lower federal courts. In fact, Congress has eliminated courts before—most notably in the early 20th century. So while Johnson’s comments might sound extreme, they’re not without precedent.
Still, McCarthy cautioned that using legislative tools like court elimination or defunding as direct responses to unfavorable rulings raises serious concerns about separation of powers. While there is room to debate judicial activism, there is also a risk that short-term political battles could undermine long-standing constitutional norms.