Why are the nations in an uproar and the people wasting time in futile plans? – Psalm 2:1
The fact that there is such a looming fight over the replacement of Justice Antonin Scalia proves one thing: the Supreme Court has become a politically activist institution instead of the deliberative body the Founders intended and expected. The divided court reflects the divided political landscape, and the thought of an unbalanced court threatens at least half the population with the fear that their rights, already under siege, might be revoked with the stroke of a pen. When words no longer mean what they mean, the Constitution becomes a Rorschach splotch, where justices can read anything into it they want to see and read out of it anything they want to see changed. My point here, though, is not to argue for an originalist interpretation, which I clearly support, but to point out how the Court’s role has veered from that intended by the Founders.
To consider the judges as the ultimate arbiters of all constitutional questions would be very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy… The Constitution has erected no such tribunal, knowing that to whatever hands confided, with corruption of time and party, its members would become despots. – Thomas Jefferson
Letter To William Charles Jarvis.
Monticello, September 28, 1820.
There is no question that the Court’s intrusion into the Right to Life issue in Roe v. Wade was an insertion by the Court into an unsettled moral and political debate that has not left the public sphere. Even Ruth Bader Ginsburg agreed that the Court should have taken a different approach, letting the issue be settled by the people gradually:
“The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Ruth. “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 North Carolina Law Review 375 (1985).
Again, the Supreme Court weighed in on homosexual marriage, redefining a word that has meant only one thing in all of human history. Even cultures that allowed pedophilia (Greece) and homosexual relationships (Rome) never confused these things with “marriage.” But the Court has decided, against the will of many people and many states, to impose its political determination over the will of the people of the several states. As Lincoln also warned after the Dred Scott decision:
At the same time the candid citizen must confess that if the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent practically resigned their government into the hands of that eminent tribunal. – Abraham Lincoln
Justice Scalia intoned, “If you want to make abortion legal, Fine! Pass a Law” His point was, if the law derives from the will of the people through self-government, then for the courts to impose a morality and legislate from the bench on unsettled and divisive issues, then the courts have become a legislative branch and have abandoned their role as the judiciary. Aside from that fact that even liberal supporters of abortion acknowledge that Roe v Wade was bad case law, with rights invented rather than written in the Constitution, the present trend of a progressive interpretation is to make the entire Constitution as flimsy as toilet paper, i.e., not worth the paper upon which it is written. Since the Court is no longer tethered to the original intent of the words written, then the Court is free to legislate based upon its own political and emotional leaning. If the law derives from the bench and not from the contract the people have made with their government through the Constitution, then the people have indeed ceased to be their own rulers.
So, now, it makes sense then that politics becomes the battle ground for the Supreme Court appointments. If the people are not making laws that directly affect their lives and reflect their morals through republican government (we are a Republic not a Democracy), then the only voice they have left is to fight through and for the appointment of judges to the Supreme Court who reflect their political, moral and even religious convictions. The battle then reflects the divide in the country and an unbalanced court threatens to disenfranchise at least half the population. Since “just government derives from the consent of the governed,” an unbalanced court threatens the social contract that a majority, or at least great minority, have with their country. Rather than promote social harmony, the Court may indeed “provoke and not resolve” further conflict. I predict that if an unbalanced court, for example, were to overturn the Second Amendment, it would provoke another civil war rather than secure the consent of the populace. The Court would be seen as an unConstitutional enemy of the people rather than their protector. With the Court’s propensity for making law, and its obliviousness to the consequences of such actions, it does not bode well for the future of the nation. With the nation already so divided on so many issues, if the Court were to push for one side of a political agenda the people would increasingly see the Court as political adversary, rather than its friend, and in the end, it will be trusted to do justice neither by the right nor the left.
The beauty of the original Constitution is that the States may make laws that reflect the will of their populace. In both Roe v Wade and the recent ruling on homosexual marriage (and also in the Dred Scott decision) the Court imposed a national ruling, overruling the will of the people of those states, and in so doing, have “provoked, not resolved, conflict.” The protection for the Court from such a resolution of distrust would be for the Court to restrict itself to the meaning of the text, thereby preventing it from imposing its personal prejudices into law, and then returning the unpopular laws back to the people to reconcile, revoke, rewrite or overturn. The Court would then function as Thomas Jefferson and the Founders intended.
Just as beauty is in the eye of the beholder, so goes opinions about the Court. This has been a very conservative court, indeed, a very activist conservative court, and some of its most activist opinions were supported by Justice Scalia. “Citizens vs. United” ignored many years of precedent and history and concluded that corporations are people and entitled to free speech, and further that political spending is speech. This ignored the basis of free speech in our Constitution, which brought the tradition of free speech from the British, where a man could freely criticize the King at the corner of Hyde Park. But in that tradition every man’s voice was equal. In Citizens, the voice of the mega-wealthy is allowed to drown out the voice of the common man…certainly an outcome not foreseen by our founders. In “Hobby Lobby”, the Court further ruled that corporations are people with religious beliefs….a decision which would shock our founders, who believed in the firm separation of church and state and that the free exercise of religion applied to individuals…not corporations, a form of ownership invented for the purposes of limiting liability. I, for one, have never kneeled in prayer next to a corporation, nor seen one partake of the sacrament. Yet this activist court somehow envisioned such. In its most recent conservative, partisan ruling, the Court stayed the Clean Power Plan, an unprecedented decision which shocked the legal establishment because it implied the Court might actually find merit in the challenge to the CPP, a finding which no legal analysis I have seen supports. Perhaps the Court was not saying that at all, but a Court normally does not issue a stay when a case has no chance of succeeding on the merits.
All in all, it would be better indeed if we had a less activist, less partisan court. This Court has been both, and has threatened the public esteem which many have held for the Court as an institution. Hopefully the President will nominate another moderate, and the balance on the Court will shift back to a less activist, more centered position.