There’s an old saying about the Supreme Court: it isn’t final because it’s supreme; it’s supreme because it’s final. That sounds clever, but let’s review some of the court’s more memorable decisions from the modern era to see how “final” they actually were, at least in terms of ending the debate.
In Roe v. Wade, it discovered a constitutional right to kill unborn children, yet most Americans believe abortion is murder and want it abolished or significantly limited.
In Kelo v. the City of New London, it told us that government had a constitutional right to seize private property for whatever reason it deems appropriate, yet most Americans believe the notion is absolutely tyrannical.
In the two Obamacare cases, it said the law’s authors meant to use the words “tax” rather than “fine” and “federal government” rather than “the states,” even though Congress chose those precise words for specific reasons. People know what those words mean, and know we’re now living under an unconstitutional law.
And now we’re told that hundreds of years of American federalism and thousands of years of human tradition mean nothing – our constitution suddenly mandates that marriage be redefined. Yet most of our churches will forever teach differently.
It’s easy to see that the Supreme Court didn’t bring finality to these debates. They sowed thicker discord instead. By gathering to themselves all power of law and assuming that they know best, these justices have denied our democratic republic the opportunity — the necessity, in fact — to thoroughly debate these issues, to persuade or be persuaded, and to have a natural argument that could eventually lead to a compromise where we could all live under the same national roof together.
Instead, they’ve walked into the middle of an argument, told everyone to shut-up, chose a side, and walked away. Nothing was settled.
There has been a great deal of talk about how the gay marriage ruling is now “the law of the land” and that advocates of the exclusivity of traditional marriage ought to just move on.
Sadly, this subservient attitude isn’t anything new.
“There is in all a strong disposition to believe that anything lawful is also legitimate,” wrote Frederic Bastiat in his book “The Law” published in 1850. “This belief is so widespread that many persons have erroneously held that things are ‘just’ because the law makes them so.”
We shouldn’t end our opposition to something illegitimate simply because it becomes “the law of the land.” In fact, because it’s the law means it should be opposed with even greater vigilance.
Meanwhile, what’s ever to be done about this incessant judicial activism? For starters, we must hold these courts accountable. Our constitution provides a path for throwing a judge or justice from the bench the same way we can toss a president from the White House, “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
But does that standard – particularly the ambiguous “high crimes and misdemeanors” section – apply to clear judicial activism? Sadly, these days the answer is probably “no.”
In his book “Men in Black: How the Supreme Court is Destroying America,” legal scholar and radio host Mark Levin notes that judges “must act in a flagrantly illegal fashion before that conduct would be considered beyond the constitution’s ‘good behavior’ standard as it is currently interpreted.”
Levin goes on to argue, therefore, that the ambiguous standard must be raised, not lowered.
“There is considerable merit in recognizing that it would not compromise the independence of the federal judiciary to treat egregious abuse of judicial authority as a ‘high crime’ worthy of impeachment and removal from office,” Levin wrote. “Knowingly doing harm to the constitution … is not the sort of ‘good behavior’ the framers envisioned justifying continuance in office.”
Levin is right, and the unconstitutional power of the courts will only grow unless it’s checked by an outside force — the people. It’s absolutely undemocratic for five of nine lawyers to have the final say on nearly every question before our society. The final word belongs to the people. It always has, and it always will. It’s just time for us to be heard.
(First published on Al.com)