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Tuesday, July 10, 2018

The courts are too powerful

This is not an original observation, but the uproar over the appointment of a justice to the Supreme Court is evidence that we have vested way too much power in nine guys and gals who are elected by no one, held accountable by no one, and can serve however long as their hearts continue to beat.

The legislative branch of government has kicked to the courts the difficult and divisive social issues with abortion and gay marriage topping the list.

The job of reining in the courts falls upon the Supreme Court itself. Justices must resist the temptation to right all wrongs as if they were Guardians of the Universe.

The fate of the nation should not hinge on nine heartbeats. Even presidents with their nuclear buttons are not as powerful.

The power to impose their will upon the people relies on suspending disbelief to accept the infallibility of nine lawyers. We must bear in mind that this is the same court that gave us Dred Scott.

In a 1965 case in which the court decided states cannot ban contraception, Justice John Paul Stevens wrote a dissent that should be required reading, "Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law.

"As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made.

"But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."

Stare decisis, meet stare legis. Striking a law down should be the last resort, not the first.

And 45 years later, Chief Justice John Roberts upheld Obamacare much to the consternation of Republicans. But he did so for the same reason Stevens dissented, writing, "Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

Elections have consequences. They should. If they did not, then why bother with them? We already allow nine people in robes to write too many laws that cannot be undone short of constitutional amendment or in the case of Dred Scott, a civil war.

Judicial restraint is the thing that America needs most, and is least likely to get because it goes against human nature not to swing the bat you have been handed.

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16 comments:

  1. Best column yet.

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  2. It was Potter Stewart who wrote the dissent to which you refer. Otherwis, dead on. I have a dear friend who was an elected DA, left to go on the bench, and after 12 years had had enough, anx returned to being DA. He calls judges the black dress brigade. In my experience over 30+ years as a lawyer, too many of them think the black dress makes tbem the smartest person i. The room. I think what thr Stewart is really about judicial humility. I think we are getting that with Judge Kavanaugh.

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  3. Ron in Ohio Sez;
    Don, ya' shoulda' added one more thing to your; "...and can serve however long as their hearts continue to beat." How's 'bout; "And irrespective of the fact that they are too old to stay awake during the proceedings. ???

    The solution? A constitutional amendment (When Trump has a safe enough majority to push it thru) That decrees age, term or proficiency evaluations to continue as a Supreme Court Justice - NOT a lifetime job!

    ReplyDelete
    Replies
    1. Life expectancy in the 1780 was about 40; 50 if you had some bucks lived near a doctor and said doctor had a clue.

      A SCUS Justice of 85 was not what the Constitution envisioned.

      There should be term limits for Congress and the Federal bench.

      Delete
  4. "Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them."

    That's what Roberts said, i.e., lied. He declared the ObamaCare mandate a tax when the Democrats had consistently declared it was no such thing throughout the run up to the passage of the law. Roberts also ignored the video evidence of one of the main architects of the law, Jonathan Gruber, who admitted the law was a sham that was passed over the objections of ignorant voters. The SC could have voided the law on the narrow legal grounds espoused by the 4 Conservative associate justices, had Roberts joined them, but he decided to create a fake tax out of the Obamacare mandate. If the Obamacare law had been funded by a broad tax like Social Security, Roberts' logic would have made some sense. But the mandate is nothing like the Social Security tax.

    ReplyDelete
    Replies
    1. IdiotCare was set up as a tax with battalions of IRS agents to enforce it.

      I wasn't crazy about what Roberts did, but going by what the Demos say it was as the only reason it isn't a tax is real thin ice.

      Delete
    2. To validate the law, Roberts had to show it was a tax. To void the law, it was unnecessary to show it wasn't a tax. It would have been voided on the grounds of an impermissible expansion of the Commerce Clause, had Roberts joined the dissenters.

      Delete
  5. Good piece. This has been the problem since John Marshall arrogated powers to himself because he thought being a mere judge did not fit so august a personage as himself.

    Now that the Demos are losing control of the Court (consider RBG goes CMYK, Breyer doesn't look good at all, Wise Latina is type 1 diabetic, and Thomas and Alito are at an age where, if they thought it safe, could retire knowing some nutcase Leftist wouldn't appoint another Earl Warren to the court), it just may be possible to get away from this nonsense.

    PS In addition to Dred Scott, they also gave us Plessy.

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  6. "The legislative branch of government has kicked to the courts the difficult and divisive social issues with abortion and gay marriage topping the list."

    Congress did not create law by intuiting it from penumbras and emanations in the Constitution. The SC and a multitude of judges in the lower courts have made much law by peering into crystal balls when it would have been wiser for them to demur. Did Judge Watson of Hawaii show the proper humility when it came to divining that candidate and president Donald Trump had bad thoughts and so his immigration policies could not stand? Or was he protecting the legitimate rights of the plaintiffs and others in the same situation? Watson probably thought his was the correct interpretation of the laws that govern immigration; if people thought otherwise, voters could throw the Nation's leaders out of office and elect a different Congress and a different president who could pass legislation that met the tests of the Constitution.

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  7. "The Supreme Court makes the law of the land" according to US Senator Bernie Sanders.

    https://youtu.be/QVb2bhWhqsA starts at the 2 minute mark

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  8. The courts just below the Supreme Court sure are.

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  9. The U.S. Constitution is written in plain language. What is so difficult in applying it to current legislation and legal questions? I grew up on a farm, and I smell bullshit. - Elric

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  10. Separation of powers . . .

    Congress legislates, SCOTUS decides if what they legislate meets constitutional requirements. POTUS only carries out the Law.

    The genius of the Founding Fathers is evident.

    The idiocy of both Congress and SCOTUS have become intolerable (as well as that of the last four Presidencies.

    It has become a joke of massive, and horrible proportions. We permit it - by giving the commie camel but nostril room in the tent.

    ReplyDelete
  11. "Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

    Think about the sheer arrogance of Roberts' statement. It's virtually a declaration of judicial infallibility. But even the SCOTUS makes mistakes that it eventually is compelled to overturn or repudiate, e.g., Korematsu and Abood. If ever I've heard an argument against lifetime appointments for judges and SC justices, Roberts' statement is it. But until fixed terms for jurists becomes a reality, if ever, perhaps the removal by impeachment of a SC justice every once in a while would have the same salubrious effect on our Nation's judicial leaders as regular re-elections have on our political leaders according to CJ Roberts.

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  13. Don - you don't have that problem in West Virginia where the state SC judges are either being impeached or retiring before being impeached.

    ReplyDelete