Posted on 06/27/2015 7:25:01 AM PDT by SeekAndFind
‘But this Court is not a legislature.” Chief Justice John Roberts actually published that sentence in his same-sex marriage dissent on Friday . . . a mere 24 hours after his maestro’s performance in the Supreme Court’s legislative rewrite of the Affordable Care Act — formerly known as “Obamacare,” but now etched in memory as “SCOTUScare,” thanks to Justice Antonin Scalia’s withering dissent.
Roberts’s denial that the Court legislates is astonishing in its cynicism: In saving SCOTUScare, the chief justice not only usurped Congress’s law-writing role with gusto; he claimed the powers, first, to divine legislative purpose from its contradictory expression in legislative language, and, then, to manufacture legislative ambiguity as the pretext for twisting the language to serve the contrived purpose.
It takes a Clintonian quantum of cheek to pull that off one day and, on the next, to inveigh against the very thought of it.
Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination.
Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.
Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?
There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.
How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.
But not the Court’s lefties, not on the major cases.
And it is not so much that they move in 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.
If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.
If, for old times’ sake, we want to maintain some harmless vestige of the charade, then let them keep wearing their robes to work — for at least as long as they can persuade voters to keep them in these jobs. Let’s dispense, though, with the fiction that their judgments are the product of legal acumen rather than sheer will.
Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law. The SCOTUScare case, King v. Burwell, was not a constitutional case at all; it was a straightforward matter of statutory interpretation. What made it ostensibly straightforward was the law: a statute that says, “an Exchange established by the State,” cannot possibly mean “an Exchange not established by the State.” If we were a nation of laws, such a case would never make it to the highest court in the land.
But we are a nation of will, the will of a determined political movement, so the law never had a chance.
The Supreme Court is not unique in being captured by progressives. It is a lagging indicator, its crush of late-June edicts reflecting what’s become of the political class of which it is now very much a part. The president rules unilaterally and in contravention of the laws. Half of Congress applauds, the rest shrugs and says there is nothing to be done. The elements of the progressive agenda the political branches don’t feel safe implementing are delegated to anonymous bureaucrats in the administrative state. The courts are there to finish the job, to give any mopping up the aura of legal rigor.
But none of it is about the law, or even expected to be. That time is gone.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
What else could we expect? The supremes are appointed by politicians. That’s a very flawed system. But, then again, I suppose our founding fathers could never have anticipated how corrupt, incompetent and evil our presidents would be.
Of course it is. And has been so for 226 years, give or take.
I usually skip the preaching to the choir pap pieces but this was every well written.
Not much left to believe in...
brilliant analysis and stating our new truth
And the check and balances are no longer there. The GOP is a pile of crap not worth supporting. When you really take a good look at the entire Washington establishment you find nothing for the majority of the people based on the Constitution. The Constitution is now a worthless piece of paper.
ping
Ok, this is where I am on this:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
This I understand, but then you get the “Church and State” clause involved:
As far as nativities on courthouse lawns and other similar religious imagery goes, Eastman said that communities should be allowed to express their views so long as citizens are not being coerced by the government to subscribe to specific ideologies.
..and this is where my problem comes in:
The way I read this is we are free to worship as we please (Constitution) and then you read the ‘Church and State’ clause and it says you don’t have to be coerced by the government to subscribe to specific ideologies...
Well if all of that is correct, then the Same Sex law, according to my view says they are coercing me because now my religion has to perform and believe in same sex marriages...which the Constitution says we have freedom of religion and my religion believes two of the same sex marrying or having sex is sinful, so didn’t the SCOTUS just step on the Constitution and Church and State laws???
Note to new, emerging nations. Never, under any circumstance adopt, or enshrine in your founding documents, judicial review of legislation duly passed by local or central parliaments. It’s anti-majoritarian and un (small-d) democratic in the extreme. It goes against any principle for how a representative republic should operate. Judicial review is the cancer that is killing the USA.
A living, breathing Constitution is what ever the politicians say it is.
When was the last time a significant Constitutional amendment was passed or proposed? That fact alone should tell us that were in a mess.
They don’t need amendments anymore because the Supreme Court makes things up.
That's for sure.
How sad that conservatives, who know that the family is the essential unit of society, think nothing of sending their children to public school, an institution captured by progressives long ago.
Your children's minds are configured by progressives, but it's unthinkable to homeschool them if you'd have to sacrifice that second income you need for the luxuries, the convenience, the social status, or the personal fulfillment you get in return for your children's minds and America's future.
Until the Reps have 2/3’s in the Senate plus the House they cannot undo what was done when the left passed Obamacare.
This SCOTUS is full of people who are activists as the 14th amendment was passed in 1868 to give blacks certain same protections. At that time a homosexual act was a felony punishable by prison in every damn state. So how could they or even one of them who passed the 14th have any such intent as these damn SCOTUS asses concluded?
SCOTUS is a Death Panel for the Constitution.
Treason.
The answer is that the liberals believe in a living breathing constitution, which will be reinterpreted. In this case, they decided that “equal protection of the laws” means that we have to allow homosexual marriage.
to the liberals, it doesn’t matter that the intention of the 14th amendment was to give rights to freed slaves, and not to be used to change the definition of marriage. Intentions at the time don’t matter.
Or I should say, it depends on the circumstances. In the Obamacare case, John Roberts and company decided that the “intentions” of providing subsidies was the ultimate issue, in spite of the wording of that law that subsidies had to come from a state, not the federal government.
I guess we can say that liberals are just making this up as they go along.
This is what happens when a Republic turns into a democracy. It was inevitable.
I came to the same conclusion over 40 years ago when Nixon took us off any gold backing of our currency. Lots of articles about that then, including future confiscation of private holdings a la Roosevelt.
One article covered the experiences of two brothers who evidently sensed something was up just before Roosevelt’s edict and converted $20,000 gold notes into coin. Some months later the Feds tracked them down and took the gold and paid them $20,000 in paper.
The guys took the case all the way up to the Supremes, who said the act was legal because they got “equal value” in paper money. I figured then that if they used that as an excuse, they were no better than the politicians.
Since then, I have seen nothing they have done to change my mind. I knew we were lost for good when it was a 5-4 decision for the 2nd Amendment.
Kennedy’s opinion astonished me.Its tome is not that of a law court but a church. Not legal but theological and dogmatic. Bill Buckley once wrote, perhaps tongue in cheek, that the Supreme Court is the American papacy. If American Catholics obeyed the pope they way they obey the Supreme Court, then the American church would be a very different institution. Kennedy claimed to be Catholic and, rightly so, as he is an exemplar of the American Catholic, who is gnostic, not Christian. By any measure the man is an open heretic, the problem being that our bishops tremble in their boots at the thought of actually challenging him head on. Not him alone, of course. Our vice-president is Catholic, the former and present speakers of the House are Catholics, like many members of the House and Senate, but they refuse to speak up.
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