SCOTUScare, SCOTUSsexuality, and SCOTUSocracy
Misapplying the U.S. Constitution is one thing. Usurping the constitutional powers of the federal legislature is altogether another.
The U.S. Supreme Court (SCOTUS) has done plenty of the former during the last century. So far in this century, however, it has brazenly embarked on the latter. After its Obamacare and homosexual marriage decisions, Americans must now realize they no longer live in a democracy. They now live in a SCOTUSocracy. They are now governed by judicial rather than political decision-making.
In both its Obamacare decisions, SCOTUS rewrote federal law. In its homosexual marriage decision, however, it went even farther and actually wrote de novo federal law. SCOTUS has no constitutional power to write or rewrite federal law. In fact, SCOTUS has no constitutional power even to judicially review the constitutionality of federal law.
The net effect is this: not only has SCOTUS usurped the constitutional powers of the federal legislature, but it has now also denied Americans their most basic constitutional right – the right to democratically govern themselves through their political representatives.
You see, Americans elect their political representatives every two, four, or six years. Thus do Americans, through their political representatives, democratically make and execute their own laws. If Americans don’t like the way their legislators make their laws, they can elect new legislators who will make laws they do like. If Americans don’t like the way their executives execute their laws, they can elect new executives who will execute their laws the way they do like. That’s how the governing will of sovereign people democratically expresses itself in a Republic.
The very word “Republic” says it all. The word derives from “res publica.” That literally means “the public thing.” The American Republic is a form of government (the thing) in which the American people (the public) are – by the land’s supreme law – sovereign.
But Americans don’t elect federal judges every two, four, or six years. In fact, federal judges aren’t elected at all – ever. Instead, they’re appointed, for the duration of their entire lives. If Americans don’t like the way their judges adjudicate, they can’t elect new judges who will adjudicate the way they do like. Americans can only endure judges until they resign or die. Or else impeach them.
Most Americans probably don’t realize that SCOTUS has no constitutional power to judicially review the constitutionality of federal law. That it has done so for 212 long years stems simply from its unilateral judicial assumption of that unconstitutional power in an 1803 case involving William Marbury’s dispute with James Madison over the delivery of a justice of the peace commission to which John Adams had appointed Marbury. Thus, the power of the majority of unelected lifetime judges to have recently forced Americans to purchase something they didn’t want to purchase (Obamacare) and to accept something they didn’t want to accept (homosexual marriage) is an artifact of a mere justice of the peace commission 212 years ago. From little acorns do great trees grow.
But for Marbury’s insignificant commission and John Marshal’s 1803 usurpation of judicial review power, the constitutionality of federal legislation would have been left exactly where it should have remained all along – with the sovereign American people rather than with (as now) nine unelected lifetime judges who are as likely to exercise their own personal political prejudices as they are to strictly construe the Constitution (putatively the land’s supreme law). Then, if the American people, in their sovereignty, had thought the acts of their political representatives unconstitutional, they could have elected other political representatives who could have, by opposing acts, remedied their predecessors’ unconstitutionality.
Chief Justice John Roberts, in his Obamacare decisions, has in effect twice now rewritten federal legislation – once to transform an unconstitutional penalty into a putatively constitutional tax and once to include in a phrase what the phrase itself excluded. In both cases, this was despite the plain language of federal legislation. The effective result is that the federal government’s ruinous takeover of the nation’s private health care system is a judicial fiat imposed on the American people rather than a political decision made by the American people’s political representatives. If the legislature “inartfully” drafted Obamacare, then the proper constitutional remedy should have been the legislature itself more “artfully” drafting a legislative amendment. Roberts should be impeached.
Justice Anthony Kennedy, in his homosexual marriage decision, has in effect now written federal legislation derationalizing one of the foremost of all mores governing human association since time immemorial. This was despite the plain language of, in this case, biological legislation. The effective result is that sexual deviancy’s takeover of the nation’s conjugal tradition is a judicial fiat imposed on the American people rather than a political decision made by the American people’s political representatives. If the states’ same-sex marriage bans were unconstitutional, then the proper constitutional remedy should have been the legislature itself proscribing them. Kennedy should be impeached.
Ruth Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer should also be impeached, but Kennedy was the balance of SCOTUS power that resulted in constitutionally denying the states and the American people their right to limit marriage to persons of the opposite sex. Besides, Ginsburg and Kagan should have recused themselves after having both, previously and prejudicially, officiated at same-sex marriages. That would have left only Sotomayor and Breyer to fruitlessly fob off their personal political prejudices on the states and the American people. Anyway, neither Sotomayor nor Kagan has – by inclination or circumstance – heretofore displayed much personal interest in marriage (either heterosexual or homosexual); Ginsburg has displayed more interest in the feminist movement and the ACLU than she has in the Constitution; and Breyer...well, he’s the administrative law mouse Bill Clinton let loose in SCOTUS.
Everyone knows there’s zero chance of this occurring, but here’s what should, in a more adult America, occur. The people’s representatives should either impeach six of the nine SCOTUS justices or else legislatively override Marshall’s 1803 unilateral assumption of judicial review. Either would be fully consistent with the legislature’s express constitutional powers. Alternatively, the people should replace their political representatives until they have political representatives who will do one or the other. In fact, this should have happened half a century or more ago.
The only possible conclusion is that the American people are too immature to preserve either their sovereignty or their Republic.
They have traded their democracy for what now amounts to a mere SCOTUSocracy.