Thorner/O’Neil: Has Judicial Supremacy reached a crisis stage?
November 21, 2015
Friday, November 20, 2015
Thorner/O’Neil: Has Judicial Supremacy reached a crisis stage?
By Nancy Thorner and Bonnie O’Neil –
Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
There is a growing discrepancy in how specific current Supreme Court Justices view their role from that of those who formed our government, constitution and the initial Supreme Court. Our forefathers’ initial intent for the Supreme Court was to be less than that of the powers granted to Congress or the Presidency. Instead, it appears their role morphed into a dominant one that supersedes the other branches.
As in most cases of unwanted and/or unwarranted changes, the process began slowly, with slight adjustments that progressed to more significant changes. A relatively minor lawsuit, “Marbury v. Madison”, began the major change that allowed the Supreme Court to make decisions that deemed acts of Congress and those of the President unconstitutional, thus creating a precedent for an American process of “judicial review.” Chief Justice John Marshall influenced that first decision, and thus future Courts. [The Marbury v. Madison decision asserting that states are bound to its rulings was issued in the midst of popular resistance in many southern states to the Court’s earlier ruling in Brown v. Board of Education which declared state laws establishing separate public schools for black and white students to be unconstitutional.]
The concept of “judicial supremacy”, or as some Constitutional lawyers say “judicial tyranny”, should be of great concern, because it indicates a failed feature of government, inconsistent with what our founders fought a revolution to establish. When there is too much power concentrated in the courts our republic is threatened.
Abuse of Power by the Court
There are glaring examples of what happens when the Court abuses its power and delivers morally unconscionable rulings, such as: 1) when it rationalized the destruction of innocent human life (Roe v. Wade, Jan. 22, 1973) and 2) justified Japanese-American internment camps (December 18, 1944).
Many U.S. presidents such as Abraham Lincoln, Andrew Jackson, and Franklin Delano Roosevelt have lamented and even ignored highly questionable Supreme Court rulings, apparently out of the belief the Supreme Court can circumvent the Constitution and “make law.”
However, those with the authority to make law is noted in Article 1, Section 7 of our Constitution, and the Supreme Court is not mentioned in it anywhere. That tells us that the Supreme Court has absolutely no role to play in creating or amending our laws. The justices simply have the power to judge and interpret the laws as they were enacted.
It is evident that the Supreme Court is not following the intent of the Constitution, as witnessed in recent cases of judicial tyranny in which decisions had absolutely no basis from the Constitution, but instead were invented, or as some say, “pulled out of thin air.” Moreover, the Supreme Court has decided important cases based more on what they perceived as popular opinion rather than having been judged on the basis of rule of law. Should Supreme Court decisions really be reduced to a popularity contest? The highest court in the land has abused its power, as justices decide how they want to rule and then dig deep for a reason to justify their decisions. This must not continue.
Two Court Case Displaying Judicial Activism
The King v. Burwell decision is a recent example of action the Court took in order to save the Affordable Care Act from being nullified. Without any justification of facts or language found in the Constitution, Supreme Court Justices upheld federal subsidies for all eligible to purchase health insurance under the Affordable Care Act.
What happened in King v Burwell?
- The statute in this case was extremely and unmistakably clear. It states subsidies for Obamacare are only available through an “Exchange established by the State.”
- One of the architects of this law, Jon Gruber, made it clear that this phrase was intended to mean exactly what it says.
- Gruber has also emphasized that it was designed this way for the purpose of pressuring states to create their own exchanges.
Ignoring those outstanding facts, the Supreme Court ruled in a favorable way to allow President Obama’s failing health care program to continue, without legal basis or legitimate evidence for that ruling.
Another recent example of judicial supremacy took place in June of this year when the 5-4 Obergefell v. Hodges decision made marriage equality the law of the land.
An issue of concern arising from the Court’s Obergefell v. Hodges decision is that two justices proved their bias about the case but did not recuse themselves. Both Justices Kagan and Ginsburg officiated at same-sex weddings before they judged the important case. This was in violation of Title 28, Section 455 of the U.S. Code 455 which states “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his/her impartiality might reasonably be questioned.” Certainly their choice to officiate at a homosexual wedding indicated ‘reasonable’ bias, as required for dismissal from the case, but they chose not to recuse themselves. That was particularly critical as had they recused themselves, the verdict would have been a reverse decision.
Of equal concern is that the Supreme Court’s ruling on Obergefell v. Hodges, went well beyond deciding the case for the specific state involved, and instead expanded their decision to legalize homosexual marriage throughout the entire country. This was particularly troublesome for the states that had established laws denying such marriages as being illegal.
This recent Supreme Court has seemingly violated laws and precedents to a degree that has forced a spirited discussion about options to remove specific justices. Constitutional lawyers throughout our country are discussing the subject of judicial tyranny and deciding on procedure by which offending justices can be removed.
Ways to Rein In Judicial Tyranny
Speaking at a hearing before the Senate Judiciary Subcommittee on Oversight on July 22, 2015, Senator Cruz doubled down on his accusations of Supreme Court activism and called for the need to “rein in judicial tyranny” through judicial term limits and retention election. As Cruz said: “So long as justices on the court insist on behaving like politicians … they should not expect to be exempt from the authority of voters who disagree with their policy decisions.” Certainly the decision they handed down had no credible evidence linking it with any past laws established by our forefathers or the Constitution upon which their verdicts are required to support.
John Eastman, chairman of the board of the National Organization for Marriage (NOM), in testifying before Cruz’s July 22, 2015 subcommittee, added one more check on the Supreme Court. Eastman suggests that states be given the ability to override “egregiously wrong decisions of the Supreme Court.”
There are established remedies that concerned Americans can do as well:
1. Americans can persuade Congress to propose and the state legislatures to ratify constitutional amendments that overturn unpopular Supreme Court decisions. Such was accomplished by the 14th amendment (ratified in 1857) which overturned much of the Dred Scott decision.
2. They can demand court-curbing bills of the kind that Congress has proposed during periods of intense disagreement with the Court, as done during the 1820s and the progressive and New Deal eras.
3. They can elect presidents who promise to change the direction of the Court, as did Andrew Jackson in 1828, Franklin D. Roosevelt in 1936, and Richard M. Nixon in 1968.
4. They can demand court-curbing bills under Article III section 2 (“…the Supreme Court shall have original jurisdiction…with such exceptions and under such Regulations as the Congress shall make.”) and end up with a pleas to make Article III section 2 a big issue in the coming primary and fall elections.
Proving to have a sense of humor, Benjamin Franklin at the Philadelphia Convention noted that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a procedural mechanism for removal—such as impeachment—would be preferable.
The American People Deserve Better
Many believe it is time to rein in the judicial system, possibly through a process of impeachment, or other established processes noted above. The current court has taken liberties not intended by the Constitution or as practiced by our first Supreme Courts. However, only one Justice, Samuel Chase, went through an impeachment process in which the House voted for impeachment. However, in this case his friends in the Senate chose to acquit. History shows impeachment is possible but rarely used. There has never been a more politically motivated Supreme Court or a nation as divided by their decisions, as evidenced today. The boldness of specific justices in defying precedence to enact their obvious liberal agenda, makes the possibility of impeachment more probable.
Members of the current Supreme Court have created such a toxic atmosphere that a more conservative Congress could be tempted to consider the possibility. Judicial tyranny must not be tolerated by any party or political entity, for the more it is tolerated without a push back, the more omnipotence the Court will become in imposing its will upon the American people in a blatant disregard for the Constitution.
Impeachment is being discussed in prestigious circles today. The subject should be taken seriously if this nation has any chance of remaining a country that is rooted in Christian values and in the rule of law. Both are now under assault by a seemingly unaccountable Court of twelve, largely because these justices believe they need not fear the humiliation of being removed from their positions.
Friday, November 20, 2015 at 01:34 PM | Permalink