Supreme Court's Supreme Problems

By Douglas V. Gibbs

MSNBC asks, "Is the Supreme Court broken?"  The logic in the online article that asks that question has some merit, and in fact, in some ways the writer asks the right questions.  Sometimes, leftists teeter on the truth, but usually their ideology doesn't allow them locate the right answers.

The basis of Gabe Roth's questions about the Supremes in his MSNBC article stems from a question that liberal left statist Justice Stephen Breyer asked.  "Why should nine unelected people be making decisions that affect you in an important way?  And why should you support an institution like that?"

Roth explains that we don't understand what our political institutions are all about, and people seem to treat the Supreme Court like the justices are up in heaven somewhere, decreeing things from on high, communicating directly with some mysterious source.  Roth's query is a legitimate one.  Breyer's question has a lot of merit.  These questions and observations demand answers that are not rooted in ideology, but in the rule of law. . . of which I mean the Constitution, not the opinions of judges through case law.

Americans have lost a lot of faith in government because government has become too big.  The MSNBC article points out that only 23% of Americans have a great deal confidence in the court system.  While the justices are supposed to be apolitical, we all know their political opinions influence their decisions a great deal.  Conflicts of interest seem to not be a worry.  Rather than apply the law, they are busy interpreting the law, and when they do that, the people in black robes have no problem manipulating the law, influencing the law, altering the law, and repealing the law - all functions, according to Article I, Section 1 of the United States Constitution, that solely belong to Congress.

So while the supposedly apolitical judges let their own personal or political views influence their decisions, we scratch our heads and wonder how it is that we gave these people so much power.

Justice Breyer's solution to fix the waning confidence the public has in the courts is for the court to use modern technology to better inform the public about its activities.  Electronic transparency.  We've heard that offer before.  The current President made that promise, and we saw how that worked out.

Is the right solution truly the one that simply makes the public, who also fails to have a handle on understanding the limiting principles of the Constitution, more aware of the actions of the courts through technology?  Would they even pay attention?  After all, we have C-Span, but I guarantee you, only a small segment of the population, mostly comprised of political geeks and students seeking credit for doing so, watches our legislators in action.  Everybody else are too busy fingering their electronic devices regarding things that have nothing to do with liberty, or politics.

The solution is deeper than transparency.  Don't get me wrong, letting us know what they are up to, and giving We the People a conduit to the justices through technology, is a reasonable idea, but that won't build our confidence in the courts.  If we were to take Breyer up on his idea, and if the public was to get the chance to dig deeper into the courts, and receive more opportunities to see them in action, the result will probably be even more anger, and even less confidence.  The justices are supposed to know the law, and are supposed to apply the law, so if they want our confidence, shouldn't following the Law of the Land be their goal?  To do that, they would need to apply the law as per the authorities granted, and roles vested in them, in relation to the United States Constitution.

Understandably, the U.S. Constitution is not easily comprehensible to everyone, not because of how it is written, but how over more than two hundred years those that oppose its limiting principles have monkeyed with the language, convinced us of myths about it, and have circumvented it at ease while telling us that what they were doing was perfectly constitutional.  Judges, politicians, and members of law enforcement and the military, take an oath to protect and defend the Constitution, so while the public may not fully comprehend the document, is it too much to ask that those taking an oath to defend it understand it?

What this all means is that we need to go back to the basics.  We need to travel to a time before technology, before the Slaughterhouse case, before Joseph Story and John Marshall, and back to what was originally intended.  The Constitution is clear on the role of the courts, and their role is not to be the final arbiter of the Constitution, or to act in a legislative manner because they personally disagree with a law.  The law says what it says, and their decisions are supposed to be based on the wording of the law, the intent of the law, and nothing more.

In the Constitution lies a concept called "Separation of Powers."  The concept exists to protect our system from interference and collusion.  All judicial powers belong to the courts, all executive powers belong to the President, and all legislative powers belong to Congress.  If the laws are unconstitutional, the courts can have an opinion regarding the constitutionality of a law, but they are not supposed to be able to strike the offending law down.  If a law is unconstitutional, the people through their States are supposed to take action, either by replacing the idiots in Congress that passed the monstrosity in the first place so that new Congress Critters can change it, or through their States reject the unconstitutional law by refusing to implement it through a process called nullification.  The courts may make recommendations if they think the laws are screwy, but it is up to We the People and our States to take action regarding the constitutionality, or unconstitutionality, of a law.

Dr. Larry Arnn of Hillsdale College spent some time with me a few years ago, and we discussed the topic of judicial review (the idea that the courts are the final arbiters of the United States Constitution).  We agreed that the authority is not something granted by the Constitution, but by the courts themselves, primarily through the 1803 Marbury v. Madison case.  He, however, supports the concept, so I simply asked two questions to make sure he understood the constitutional implications of his position.

First, I asked him, "We have four liberal justices, and four conservative justices, and Justice Kennedy who wavers depending on which side of the bed he wakes up on in the morning. You know, the right side, or the left side.  Do you really think that the founders wanted the laws of the nation to sit on the shoulders of only one man like that?"

Second, "The Constitution was written to create the federal government, but to limit that government in many ways.  The concept of judicial review is the idea that the courts can decide if a law is constitutional, or not.  To do so means that they are deciding if the federal government has the constitutional authorities related to the law in question.  But the Supreme Court, and the inferior federal court system, are all a part of the federal government, which means that judicial review is allowing the federal government, through the courts, to decide what its own authorities are.  How is that limited government?"

Dr. Arnn didn't have an answer for me.  Most people don't.  Dr. Brooks of Monticello College, in a conversation I had with him last February, concurred with my reasoning, surprised that Dr. Arnn took the position that he had.  Like Dr. Arnn, most people don't have an answer for those questions.  The courts in today's political landscape are a contradiction to the original intent, and they are a contradiction to the concept of a republic.

The American People may not understand the Constitution as fully as they ought to, and they may not comprehend the authorities granted, or not granted, or even what that means.  But, Americans know tyranny when they see it.  Americans recognize when a small ruling elite dictates to a population.  We are born in liberty, and as Americans, we know in our gut when threats to that liberty exist.  Hence, why the courts only have the confidence of 23% of the public.

While Breyer and Gabe Roth are asking the right questions, they are unable to locate the correct answers because their progressive ideology won't allow them to seek an answer that has anything to do with limited government.  Individualism and the checks and balances of a republic are often foreign to folks that dwell left of center because their brains operate in a manner seeking collective solutions through governmental superiority.  The proper constitutional path, however, has never been government, and as the polls suggest, most people realize that.  The destination we seek lies in the limiting principles of the original intent of the Constitution, an answer I doubt Breyer or Roth may ever entertain, though one can hope.

Sure, Breyer and Roth are asking the right questions, because as Americans, even they know something is wrong.  However, their religion of leftist statism won't stand aside long enough for them to approach the correct answers.  Sure, they are asking the right questions, but even a broken clock can be right a couple times a day.

-- Political Pistachio Conservative News and Commentary

Is the Supreme Court Broken? - MSNBC