Posted on 03/02/2005 5:05:06 AM PST by Brilliant
Supreme Court Justice Anthony Kennedy has many attributes, but judicial modesty isn't one of them...
Yesterday's ruling concerned a death penalty case, which isn't something we usually write about. But what makes Roper notable, and worthy of wider debate, is the way it symbolizes the current Supreme Court's burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of Justices has been imposing its own blue state cultural mores on the rest of the country. We suspect it is also inviting a political backlash...
As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."
Mr. Kennedy rests his decision on his assertion that American society has reached a "national consensus"... His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority...
This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind...
If there is a silver lining to this case, it is that it probably disqualifies Justice Kennedy from any consideration to be promoted to Chief Justice...
(Excerpt) Read more at online.wsj.com ...
Now Congress is another matter. Congress has the power to gradually strangle SCOTUS until they get the message. To give a draconian example: Let's suppose POTUS provides temporary relief from a particularly onerous decision through lack of enforcement. Congress can really put the screws to SCOTUS by de-funding all but their salaries (everything...all..paper, pencils, telephone, everything period) Second step could be to gradually suspend US District and Circuit Courts (or at least the most egregious ones like the 9th circuit) all of which serve at the pleasure of Congress. Since SCOTUS has only appeal authority on most matters not involving disputes between the states, there would be no path to take ACLU issues to SCOTUS.
Plenty of disruption? You bet but it would work in a heartbeat. It would require many members of congress to grow eggs however and that is our (we the people) job.
I agree that Congress would be a better instrument for a long-term and possibly permanent chastisement of the Courts. Clearly an honorable and justified stand taken by President Bush could simply be undone by a future President.
Of course the same could occur with a change of power in Congress, but obviously undoing the things you suggest would be much harder than a reverse from the Executive branch.
Ideally though, the President and Congress would work together in such a bold and necessary move.
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