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.
This is what happens when a Republic turns into a democracy. It was inevitable
We are a Nation of " The Rule of Law"
The Chief Executive, whose job it is to execute law, chooses which laws to enforce, ..
and other laws the Chief Executive chooses which laws to totally ignore .
Words have meaning , and laws are written with specific legal meaning, using punctuation currently in use with English as the language of choice (at least for now).
As a result of the current SCOTUS judicial activisim and acrobatic interpretation of law, including ignoring punctuation ,
we have been shown by the Judiciary that legalistic words and punctuation have no meaning, and
we have been shown by the Executive branch that the law can be applied selectively ,
The only conclusion is that we are no longer a Nation with " The Rule of Law" but rather selective interpretation, and selective enforcement of the rule of law ,
which is actually two branches of government serving up an application of CHAOS which reinforces state facism .
This is no longer the country that I recognize as being a responsible republic ,
but rather, just another "OCCUPY WASHINGTON" ,.. done Chicago style.
There is enough treason in the District of Corruption to go around. We tried voting against it but obviously that failed. Not much left to do but watch this country go the way of the Roman Empire.
Another obvious fact is that most of America is being run by the screeching minorities and not the law abiding Christen/Judaeo people that follow in the footsteps of the Founding Fathers. Today the only option is to be old enough to not have to witness the total failure.
The germ of destruction of our nation is in the power of the judiciary, an irresponsible body — working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated. ~ Thomas Jefferson 1821
So when is congress going to put the judicial in check?
When we opened the vote to illiterate, deadbeat types, the Republic was dead. We’re a democracy and that’s the problem.
Oligarchy existed in the 19th century and was ratified in 1913 when private bankers were handed control of the US financial system. It exists now to fund banker "mistakes" (read gambling), deficit funding of political goodies for the voting cargo cultists, and crony capitalists. Your favorite political candidate is free to yack within the context of that and at all times knows from where the stuffed manilla envelope comes.
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.
The gays have intentionally infiltrated the Churches for decades, and now we see the result.
The gays have intentionally infiltrated the Churches for decades, and now we see the result
the American bishops cannot decide which side they are on
The Congress can impeach a supreme court member for lack of “good behavior”. Why haven’t they???
If Congress believes the court is acting politically, they can impeach those members that are.
Why haven’t they??
We live in an occupied dictatorship, ruled by one political party, led by God hating liberals.
We’ve reached the point where our for branches of gov’t (executive, legislative, judicial and regulatory) are no longer co-equal.
Nine people deciding for 320 million is a democracy?
We live in a constitutional republic, not a democracy.
David Kuo is dead.
https://www.youtube.com/watch?v=r-8I-51XK58
but his dream came true. He convinced Christians to stand down right before the Pelosi 2006 uprising ... Obama ... Kagan & Sotomayer.
He called for a “fast from politics”
We proved our piety by letting the leftist win. Feel better, David?
Don’t be obtuse. Those nine were appointed by incompetent men who, themselves, were handed the office of POTUS, by the votes of mongrels, deadbeats, and perverts.
I know, but the American people laid the path over decades for a totalitarian state to their liking.
They won’t impeach for the lack of public support. Many like this strong-armed court, including the congressmen.
This is from National Review, a publication that recently posted a pro-homosexual “marriage” article.
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