Clarence Thomas identifies the greatest danger in America

Talk to me for just a few minutes about my life as a lawyer, and I will tell you that, without question, the worst thing about being a litigator is activist judges.  It turns out that Clarence Thomas shares my concern, for he fears the power that the Supreme Court holds.

In a speech at the University of Notre Dame, the brilliant jurist told his audience, "The court was thought to be the least dangerous branch and we may have become the most dangerous," adding, "And I think that's problematic."  Indeed.

Article III of the Constitution of the United States establishes a "supreme Court."  It lists those matters that fall within the Court's jurisdiction, including "all Cases, in Law and Equity, arising under this Constitution[.]"  While Art III limits somewhat the nature of the cases the Supreme Court may hear, it does not impose any checks or balances on the Supreme Court's power.

Then, in 1803, Chief Justice John Marshall extended the Court's power, holding that Article III's grant of authority inevitably gave the Court the power to overturn unconstitutional legislation.  The result is a Supreme Court that has freely rewritten the Constitution to achieve political ends — and turned the Court itself from what should be a neutral judicial institution into one that has become the partisan center of D.C.

The problem began with the fact that, while Articles I and II, as well as the Bill of Rights, had roots in long-established British rights, some stretching back as far as 1215 and the Magna Carta, the Founders started from scratch with the Supreme Court.  Alexander Hamilton, in Federalist No. 78, believed that the Judiciary would be the "least dangerous branch of government," one that was "feeble" because Congress had legislative power and the people would be the forces behind amending the Constitution.

The one person who clearly saw how the federal Judiciary could become tyrannical was Judge Robert Yates, AKA Brutus, who tackled the Supreme Court in Anti-Federalist 78-79:

The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. 


The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.


In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. 

Judge Yates was prescient.  Thanks to the Supreme Court's unfettered power to write into the Constitution principles that neither the people nor their Legislature supports, we have unlimited abortion based on emanations of penumbras; same-sex "marriage" based on feelings and self-respect; and transgender rights read into the Civil Rights Act of 1964 because one justice (Gorsuch) thought mental illness is the same as "sexuality" (and again, there is no scientific authority supporting transgenderism as a real phenomenon separate from mental illness).

Those are the biggies that have fundamentally shifted society in ways beloved of Marxists.  There are innumerable other, more technical examples in which the Supreme Court has acted as an unelected, uncontrolled legislature.

Kudos, therefore, to Justice Thomas for recognizing that he sits on an institution with dangerously unlimited power — and one, moreover, that has four to five justices (depending on how Chief Justice Roberts rules) who revel in that power to remake society without going through the messy process of convincing the American people to "get with the program."

And as you ponder the Court's already overweening arrogance, consider further that one of the things the Democrats hope to do with their control of the Legislative and Executive Branches is to pack the Court to ensure that it is a permanently leftist institution that will rubber-stamp all Democrat initiatives regardless of constitutional constraints.

Image: Clarence Thomas.  YouTube screen grab.

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