Posted by
flagwaver on Tuesday, August 07, 2007 1:34:38 PM
The Supreme Court is out of control! It has been since the ill begotten Marbury v. Madison decision handed down in 1803, where Chief Justice John Marshall and his black-robed cronies created the power of judicial review. In blatant disregard to the powers granted it by the Constitution the Court, in a purely political decision, decided that the Justices were the final arbiter of what would be regarded as constitutional.
Since that initial usurpation of power by the Olympian Court, there has been a steady stream of decisions that allowed the Justices to gather more power unto themselves, at the expense of the elected branches of the government. The Court has struck down duly instituted laws, injected itself into the war making realm of the executive, and even insinuated itself into the electoral process. The Court truly has become the “most dangerous” branch that Thomas Jefferson feared that it would after the infamous ruling in Marbury.
But in reality, as bad as the Court is the two other branches are even worse. They are worse because they have allowed the Court to intrude on their sovereign territory and have made no real efforts to put the Court back in its rightful place; as a coequal branch and not the rulers of the land.
Both of our elected branches make noise about how out of control the Court is from time to time, but they rarely make any real efforts to rein it in. The major reason for this is that the Court and its decisions give the elected branches both cover and a convenient scapegoat. By allowing the Court to make policy and legislative decisions, the elected branches are able to avoid making tough choices or unpopular decisions; they let the Court decide and take the brunt of public criticism.
Here is a case in point, the McCain-Feingold campaign finance “reform” bill. The Congress, in a huge case of bipartisan foolishness, passed a law that completely ignored the plain words and accepted meaning of the First Amendment. This “campaign finance reform” bill put draconian restrictions on what could be said, and by whom, in the 60 day period immediately before an election. The Congress knew that this was obviously counter to the Constitution, but they did it anyway. The bill goes to President Bush’s desk, where he signs it into law despite his statements that the law was a basic affront to freedom of speech as we have known it in this country from our inception. The President, instead of vetoing the bill, punted to the Supreme Court so that they would have to strike down key portions of a law that seemed to have some popular support. If the Court struck down the bill’s key provisions then the President got what he wanted without having to incur the wrath of the NYT editorial page or the Congressional Democrats; they were the perfect cover for him on the issue. The only thing is that they fooled him and let an obviously unconstitutional bill stand until recently, when the newly constituted Court struck down some the more odious provisions in the law. But all of this could have been avoided if the President had simply done his job, instead of trying to hide behind the robes of the Court.
Congress is no better, in that they have the power to limit the purview of the Court and the types of cases that it hears. If the Congress, way back in 1973, had had the guts to do its job we would never have been saddled with the abomination that is Roe v. Wade, and we would not be facing the specter of some activist federal court attempting to foist same-sex marriage upon us. But the Congress lives in mortal fear of running afoul of their bosses at The Washington Post, the L.A. Times, and CNN; they would just about crumble if they thought that their bosses weren’t pleased with them. So they allow the federal courts, and SCOTUS, to do their legislating for them from the bench; it’s easier that way and they don’t have to answer to their constituents for bad law. By allowing the courts to make the laws they know they could never pass, the Congress gets to pass the buck to the unaccountable, unelected members of the judiciary branch who rarely have their powers checked by their fellows in the federal government.
With an Executive and Legislature that would like nothing better than to continue using the Court as cover and a de facto lawmaker, don’t look for the Court to be reined in any time soon. They are performing too large of a service to the other branches just by doing the jobs the Executive and Legislature won’t do!