- Scathing commentaries on the “lawless” nature of the SCOTUS’ actions this week.
- Implied agreement on what to do about it – treat SCOTUS as the political body it is.
This Ted Cruz statement was issued yesterday and is something we can set out in its entirety. Senator Cruz is an expert constitutional authority having clerked for the Chief Justice William Rehnquist and as Texas Solicitor argued important cases before the Supreme Court. Andrew C. McCarthy’ comments in his column today at National Review are compelling on their own, a must read, and also serve to reinforce the gist of Cruz’s comments. These articles are great critiques and must reads regarding essential problem of modern Supreme Court jurisprudence. Bold emphasis is applied by us.
Constitutional Remedies to a Lawless Supreme Court
This week, we have twice seen Supreme Court Justices violating their judicial oaths. Yesterday, the Justices re-wrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5-4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government.
Both decisions were judicial activism, plain and simple. Both were lawless.
As Justice Scalia put it regarding Obamacare, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ . . . We should start calling this law SCOTUSCare.” And as he observed regarding marriage, “Today’s decree says that . . . the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.”
Sadly, the political reaction from the leaders of my party is all too predictable. They will pretend to be incensed, and then plan to do absolutely nothing.
That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage. And the 2016 election has now been transformed into a referendum on Obamacare; in 2017, I believe, a Republican president will sign legislation finally repealing that disastrous law.
But there is a broader problem: The Court’s brazen action undermines its very legitimacy. As Justice Scalia powerfully explained,
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall. . . . With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
This must stop. Liberty is in the balance.
Not only are the Court’s opinions untethered from reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy.
This week’s opinions are but the latest in a long line of judicial assaults on our Constitution and the common-sense values that have made America great. During the past fifty years, the Court has condemned millions of innocent unborn children to death, banished God from our schools and public squares, extended constitutional protections to prisoners of war on foreign soil, authorized the confiscation of property from one private owner to transfer it to another, and now required all Americans to purchase a specific product, and to accept the redefinition of an institution ordained by God and long predating the formation of the Court.
Enough is enough.
Over the last several decades, many attempts have been made to compel the Court to abide by the Constitution. But, as Justice Alito put it, “[t]oday’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
In the case of marriage, a majority of states passed laws or state constitutional amendments to affirm the definition of marriage as between one man and one woman. At the federal level, the Congress and President Clinton enacted the Defense of Marriage Act. When it comes to marriage, the Court has clearly demonstrated an unwillingness to remain constrained by the Constitution.
Similarly, the Court has now twice engaged in Constitutional contortionism in order to preserve Obamacare. If the Court is unwilling to abide by the specific language of our laws as written, and if it is unhindered by the clear intent of the people’s elected representatives, our Constitutional options for reasserting our authority over our government are limited.
The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that Justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’ “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the Justices’ “deliberate usurpations of the authority of the legislature.”
But the Framers underestimated the Justices’ craving for legislative power, and they overestimated the Congress’ backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the Justices. Today, the remedy of impeachment – the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an Attorney General nominee openly committed to continue an unprecedented course of executive branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless Justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.
Rendering the Justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these States demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.
Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the Justices of the Supreme Court to periodic judicial retention elections. Every Justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
As a constitutional conservative, I do not make this proposal lightly. I began my career as a law clerk to Chief Justice William Rehnquist—one of our Nation’s greatest chief justices—and I have spent over a decade litigating before the Supreme Court. I revere that institution, and have no doubt that Rehnquist would be heartbroken at what has befallen our highest court.
But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the People for an Article V Convention of the States—to propose the amendments directly—will grow stronger and stronger.
As we prepare to celebrate next week the 239th anniversary of the birth of our country, our Constitution finds itself under sustained attack from an arrogant judicial elite. Yet the words of Daniel Webster ring as true today as they did over 150 years ago: “Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.” We must hold fast to the miracle that is our Constitution and our Republic; we must not submit our constitutional freedoms, and the promise of our nation, to judicial tyranny.
This piece by Andrew C. McCarthy at National Review could serve as the last word on the debacle this nation witnessed this past week. It is not an encouraging or uplifting message. Its writer is well qualified to offer his commentary.
Observers, far less knowledgeable of the law and the US Constitution than Mr. McCarthy, looked on this week as the rule of law in America was dismantled and the Constitution became a lamented relic of a rich past, now forever gone.
As an ingenious set of guiding principles on which a great nation was founded and continuously enriched and improved upon until the “progressive” movement finally gained full control of the nation’s levers of power, the Constitution and the concept of the “rule of law” because of the hubris of the Supreme Court are now “museum pieces” which demagogues and would be despots can posture about as if they believed in it.
The only fact McCarthy omits in this piece regarding the Justices who presented the farce we witnessed this week, had to do with the gay marriage decision. The objectivity with which two of the participants approached the “arguments” before the Court are best exposed by the fact that two of them had already presided over gay marriages even while their decisions were being formulated.
After pointing out the ridiculous inconsistency of Justice Roberts (however much we agreed with it, it was also our first impression of Robert’s marriage opinion on the heals of his preposterous Obamacare opinion) McCarthy goes on to comment on how predictable political dependable the liberal justices are prior to the decisions. He concludes that the political nature of the court must now be dealt with accordingly. We are limited to excerpts here but we encourage you to read the entire article.
Supreme Court — Gay Marriage and Health Care Decisions Were Lawless — Let’s Drop the Charade: The Supreme Court Is a Political Branch, Not a Judicial One.
And it is not so much that they move in (leftists on the Court) lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.
But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.
That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.
DLH and R Mall
