This has been a difficult week for the advocates of the rule of law in America. The lawlessness of recent years evident in the Executive appears to be fully manifested in the other two branches of government as well.
The Supreme Court of the United States (SCOTUS) is the “court of last resort,” in our legal system. Once they have ruled on an issue, there are no other paths for legal appeal.
Since the time of Chief Justice John Marshall, SCOTUS has assumed the role of final arbiter of Constitutionality, reviewing acts of Congress and the Executive branch in light of Constitutional restrictions on governmental power.
This system of judicial review is predicated on the assumption that the Court relies upon the original intent of the framers when assessing the boundaries of governmental action. To appeal to the Supreme Court is to appeal to the protection of the Constitution itself… or so we thought.
The paroxysms wrought by the Progressive movement in the early 20th Century tested SCOTUS as it had never been tested previously. The stated goal of the Progressives was the dissolution of the Constitution, as being wholly inadequate to the governing of a “modern” society.
Wrapping themselves in the jargon of science and advancement, the Progressives nonetheless revealed themselves to be nothing more than would-be petty tyrants consumed by the idea that they could direct the lives of others better than those people could for themselves.
The American people were made of sterner stuff then; they resisted, demanding respect for their God-given rights as evinced in the Constitution. SCOTUS weighed in on a slew of initiatives of government, striking down many as too invasive to liberty to be compatible with a Constitutional Republic.
Over the years however, the Progressives realized that they could accomplish in the judiciary what could not be accomplished in the Congress, or the court of public opinion. They sought to stack the courts.
Franklin Delano Roosevelt, in an effort to protect and advance his “New Deal” proposals relied upon judicial activism to sidestep the obvious issues with Constitutionality inherent in his package of “reforms.”
SCOTUS began to rule as they wished things to be, not as the law said they were.
This is not to say that SCOTUS had never ruled injudiciously before; in fact, there are several instances of extra-constitutional rulings leading up to the Civil War. However the difference in the 20th Century court is one of scope.
As lawlessness in the Executive breeds lawlessness in the people, so it was with SCOTUS. Repeatedly, the court granted Constitutional imprimatur to clearly unconstitutional usurpations of power. The Federal government exploded in size and power.
Now, after all these decades of judicial activism being met with a wind and a nod, we have a court who tells us that the clear language of a law isn’t in fact clear at all, but rather a cry for judicial interpretation to discern the lawmaker’s true intent.
SCOTUS is now a panel of mind-readers whose fantasies carry the rule of law.
Judge Robert Bork, President Reagan’s nominee for the Supreme Court who was famously smeared and reviled to such an extent during his confirmation hearings that the underhanded methods used against him have become a verb known as “Borking,’ once pointed out that our Republic is in danger when the people stop believing the Supreme Court’s rulings are based in Constitutional principle.
“The people now protest yearly at the steps of the Supreme Court on the anniversary of Roe-v-Wade, not on the steps of the House, where the laws are made. This shows that the people understand all too well where this law was made, and they protest accordingly.”
Once SCOTUS is unmoored from the Constitutional dock, then their rulings become no weightier than the political surmising of any back-bench Congressman, and are deserving of no greater respect.
This is what our Court has given us this session. SCOTUS unmoored and adrift as a ship with no crew. We all know what happens to a derelict ship when the storms come. God help us.