Crunch Time at the Supreme Court

By Richard D. Land, Christian Post Executive Editor Saturday, July 07, 2018

Justice Kennedy has retired from the U.S. Supreme Court, creating the opportunity for President Trump to nominate a second justice for Senate confirmation to the highest court in the land.

This event has triggered a political frenzy on the American political left. They are racing around with their hair on fire on all forms of media doing their best impressions of "Chicken Little," exclaiming, "The sky is falling! The sky is falling!"

Why the volcanic emotional eruption from the political and cultural left-wing establishment? The reason is simple — this vacancy furnishes President Trump with the rare opportunity to shift the Supreme Court's delicate ideological balance in the direction of a strict-constructionist, original intent court that asks, "What was the original intent of the founding fathers?" — not what the current justices decide is best for the nation.

The chief consequence of such a shift would be a much less intrusive, interventionist, and arrogant Supreme Court and a rebirth of government "of the people, by the people, and for the people."

For much of the latter half of the 20th century and the first quarter of the 21st century, the Supreme Court majority has viewed the U.S. Constitution as a "living document" into which the justices were free to read their own convictions, values, and beliefs and to discern previously undiscovered (some would say utterly fabricated) "rights" into the Constitution. These newly discovered "rights," by the way, would have shocked and dumbfounded the Constitution's original authors.

The liberal social and political establishment thoroughly enjoyed imposing their social and cultural agendas on the rest of the nation for at least two generations through a liberal judicial imperium that too often short-circuited the political process and frustrated the political will of the American people.

Polling shows that one of the major reasons cited by millions of Americans in their decision to vote for President Trump was his promise to remake the court system from top to bottom in a more strict-constructionist, originalist posture.

Now, thanks to President Trump's ability to replace Justice Kennedy with a strict-constructionist, original intent justice, that elitist, liberal judicial hegemony is crumbling — thus the collective panic attack on the left-wing of American thought.

Seldom, if ever, has the arrogance of the imperial judiciary and its radical departure from the founders' intent been more accurately dissected and described than in Chief Justice Roberts' blistering, incandescent dissent in the Obergefell v. Hodges (2015) decision that by a 5-4 vote legalized same-sex marriage in all 50 states by judicial edict.

Chief Justice Roberts does not mince words in his disdainful dissent to the court's majority opinion, declaring,

"The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclaims judicial 'caution' and omits even a pretense of humility, openly relying on its desire to remake society according to its own 'new insight' into the 'nature of injustice.' . . . As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia. . . . Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law."

Then the Chief Justice summarizes the issue both frankly and succinctly:

"Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer."

Roberts speaks to the dangerous usurpation of power symbolized in the Obergefell decision and the damage it does to America's political freedoms. As Chief Justice Roberts observes, "The Court's accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it."

Chief Justice Roberts also notes, "Nowhere is the majority's extravagant conception of judicial supremacy more evident than in its description — and dismissal — of the public debate regarding same-sex marriage" and their conclusion that it "is high time for the Court to decide the meaning of marriage based on five lawyers' 'better informed understanding.' ..."

The conclusion of Chief Justice Roberts' Obergefell dissent should be chiseled into a marble wall in some public place:

"In the face of all this, a much different view of the Court's role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition."

* * * If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Supporters of the strict-constructionist, original intent judicial philosophy like the present writer should take comfort in the fact that Chief Justice Roberts will now be the "swing" vote on the new, post-Kennedy court.

We will increasingly have courts that interpret the law and decide what the Constitution says, not what they would like for it to have said. That is what a judge is supposed to do. In his confirmation hearing, now Chief Justice Roberts was asked by Senator Schumer, "Are you going to be for the 'little guy' or the 'big guy'?" Roberts replied that his client would be the Constitution. If the Constitution said the big guy should win, he would be for the big guy, and if the Constitution said the little guy should win, he would be for the little guy. Bravo!

My advice to activist judges who feel the Constitution or a law is wrong is simply this: if you want to change the Constitution or the law, don't abuse your judicial office by imposing your view by judicial fiat. Instead, resign from your judicial position and run for Congress. That's where laws are to be made, by the people's duly elected representatives.