We have heard of how there is a wall of separation between church and state and is "proved" by a letter of one of our founding fathers: Thomas Jefferson. I have not found that letter yet but he did warn us in several letters about the federal court system, and the Supreme Court in particular can be a hazard if left uncheck to legislate from the bench rather than judge yea or nea on the law:
A usurping judiciary will become despotism
—– To Jarvis, 1820
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is "boni judicis est ainpliare jurisdictionem," and their power the more dangerous as they are in once for life . . . The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.
If the Federal judiciary is not checked, it will destroy democracy.
—– To C. Hammond, 1821
It has long, however, been my opinion, and I have never shrunk from its expression (although I do not choose to put it into a newspaper, nor, like a Priam in armor, offer myself its champion), that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated. It will be as in Europe, where every man must be either pike or gudgeon, hammer or anvil. Our functionaries and theirs are wares from the same workshop; made of the same materials, and by the same hand. If the States look with apathy on this silent descent of their government into the gulf which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron, and the blasphemers of man, as incapable of self-government, become his true historians.
Sinister procedure of the Supreme Court
—– To Pleasants, 1821
Another most condemnable practice of the Supreme Court to be corrected is that of cooking up a decision in caucus and delivering it by one of their members as the opinion of the court, without the possibility of our knowing how many, who, and for what reasons each member concurred. This completely defeats the possibility of impeachment by smothering evidence. A regard for character in each being now the only hold we can have of them, we should hold fast to it. They would, were they to give their opinions seriatim and publicly, endeavor to justify themselves to the world by explaining the reasons which led to their opinion.
To curb Federal judges, they should be appointed every six years
—– To Pleasants, 1821
[For the] difficult task in curbing the Judiciary in their enterprises on the Constitution . . . the best [remedy] I can devise would be to give future omissions to judges for six years [the Senatorial term] with a re-appointmentability by the president with the approbation of both houses. If this would not be independence enough, I know not what would be . . .
The Judiciary perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment therefore is a bugbear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every sixth year. It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation.
I have heard the argument the Constitution is a living, breathing document, not a straight jacket, and it is true to the point that it can be changed as prescribed by an act of Congress not by elitist judges trying to move their personal opinions and agendas through the court system. Hopefully the additions of the two newest justices, Chief Justice John Roberts and Associate Justice Samuel Alito will help swing the balance to a more traditional and conservative court.