The Supreme Tyranny of the Supreme Court

 

As Americans, we must think long and hard about what role the courts should play in our nation. Why must we review the role courts play in our society? Because more and more of the time it’s our courts who have become the greatest threat to the American republic. Interestingly, this argument isn’t only happening on the Democratic side of the aisle, it’s also happening on the Republican side. And that brings me to what I write in this blog post, which is the following question: Has the Supreme Court become tyrannical? Based on the Supreme Court’s history and its current role in America, the answer would be resoundingly, yes. That brings a second question: Is that the Supreme Court we want for our country? Again, I would say, resoundingly, no. We don’t want nor should we be ruled by the Supreme Court. And yet, that’s what’s happening in America. That’s what I’d like to talk about in this post.

Recently, two Supreme Court justices, in seeking more money for security before Congress revealed the threats they are facing. Unfortunately, in a highly polarized and politicized country, that’s the reality of life. We live in a fallen world. Yet the underlying basis for the threats being made (uniquely by one side of the aisle) have created this highly volatile situation, which is who decides what takes place in America. And the Supreme Court was never given that job by the American people. Rather, gradually, they have, by their own rulings, aggrandized power to themselves. And it’s not me saying that. Rather, one of the most respected legal scholars of our time and a former Supreme Court justice made that statement. The justice I speak of is, Justice Anton Scalia. 

What did Justice Scalia think about the role the Supreme Court was playing in America? In a highly contested and controversial decision, the Supreme Court had decided in favor of homosexual marriage. To Justice Scalia, the Supreme Court had stepped out of its role to decide “cases and controversies”, for in the case before the Supreme Court, no controversy existed, both sides agreed. Nevertheless, the Supreme Court decided to rule where no controversy existed. Justice Scalia, in writing his dissent, used some of the strongest language ever used by any Supreme Court justice. What did he say? He accused his fellow Supreme Court justices of fomenting a “putsch”. What’s a putsch? It’s an overthrow of government. 

Think about that for a second, one of the most respected and eminent legal scholars of our time stated unequivocally that his fellow Supreme Court justices had overthrown the duly elected and duly established government by a decision it entered. What he said was far more declarative, for he said, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” See Oberfell v. Hodges. Then, Justice Scalia went further, saying, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” And right here, we see his point: the Supreme Court has stepped outside its constitutional role, a role that’s been stunningly and gradually redefined one decision at a time over America’s past 250 years of existence. 

The Supreme Court was always meant to be the weakest of the branches of government. Alexander Hamilton stated about the Supreme Court, “It may truly be said to have neither FORCE nor WILL, but merely judgment”. But what happens when we lack individuals of character or judgment on America’s Supreme Court? Further, what should happen when, and if, the Supreme Court steps outside its role of reasoned judgment into politics? What if America’s Supreme Court justices have lost just judgment? Should an unelected committee of nine lawyers be the rulers of America? The obvious answer to that last question is, no, nine lawyers shouldn’t rule the American people. Nor should twelve districts of judges substituting their will for the will of the American people. 

Recently, the Supreme Court issued the following ruling: “Children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment’s Citizen-

ship Clause.” Trump v. Barbara. This ruling, which strains both the text and purpose of the 14th Amendment lacks reasoned judgment, as Justice Thomas points out in his dissent. In reality, it has paved the way for the destruction of our nation. How?, you might ask. Simply put, it has thrown America’s doors wide open to any Tom, Dick, Harry, Sally, and Susan. The “reasoned judgment” of the Supreme Court makes no distinction between the resident and the burglar. Such a conclusion is, well, mind boggling.

Here, Amy Comey Barrett and John Roberts along with Brett Kavanaugh fail to recognize their own flawed judgment, along with the liberal justices — they make no distinction between the resident and burglar. Justice Thomas, now the oldest member of the Supreme Court, tries to persuade his fellow younger justices of their error. Unsurprisingly, they refuse to hear his argument. In essence, the Supreme Court has converted the 14th Amendment into something it was never intended to do — allow burglars to become home owners by merely being in the house. Such a conclusion is, as I said previously, mind boggling. And it appears to me that in the midst of all the legal arguments and briefs that judgment was lost — burgers shouldn’t become homeowners just because they’re in the house. 

Here, common sense was lost. Yes, judges should have common sense. Justice isn’t blind to truth; rather, it embraces it. Yet the aggrandizement of America’s Supreme Court, a court that apparently lacks any reasoned judgment whatsoever, has become exceedingly dangerous to the idea of America — We the People govern ourselves. The federal and state governments are subordinate to the People. Justice Scalia highlighted this point in the dissent he wrote in Oberfell v. Hodges, “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” 

That brings me to my final point, which is the substance of my point — the Supreme Court, yes, the courts themselves, have become a threat to America. That threat is significant. And we must recognize and decide what to do about it. Yes, tyranny can come in many forms and disguises. Tyranny can even come under the shadow of a Supreme Court that’s lost its judgment. Scalia understood that, as does Justice Thomas. The Supreme Court was never meant to rule America. Yet, now it does, blatantly so. That’s, as Justice Scalia stated, removed America from being a Democratic Republic to an Oligarchy. 

Thomas Jefferson, after the Supreme Court’s decision in Marbury v. Madison establishing the Supreme Court’s role as the final decision maker regarding all things constitutional, wrote, “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, a very dangerous doctrine indeed”. Here, Jefferson acknowledged the flawed reasoning of a court that had gone to far. Today, with its current decision on birthright citizenship, the American Supreme Court has gone farther than Jefferson could have imagined. And that begs the question: What should the role of the Supreme Court be? Further, who should decide what the Supreme Court’s role should be? 

Thomas Jefferson, and Anton Scalia, argued that “We the People” should make that decision. Today’s Supreme Court seems to think differently. What say you?

Let us pray!

— Scott Wallis