Surprising many on both sides of the political aisle, recently, Supreme Court Justice Anthony Kennedy announced his retirement at the end of July, leaving a vacancy for President Trump to fill on the Union’s highest court. However good this news may sound to Texans hoping to end progressive domination of SCOTUS, celebration may be a little premature as nothing has been done about the real problem: illegitimate and unchecked judicial authority.
Kennedy’s declaration was met with great joy on the right and great weeping and gnashing of teeth on the left. GOP Senator Ted Cruz used the opportunity to promote the idea that his colleague, Senator Mike Lee, would make an excellent Justice. Conversely to Cruz’s excitement, Hillary Clinton tweeted that a “Republican president could nominate as many as 4 Supreme Court justices,” adding sardonically that it “should terrify you.”
The reason for Hillary’s terror should be obvious. For decades, the left has used SCOTUS and its unconstitutional imposition on duly passed-legislation to accomplish goals that otherwise lacked sufficient support needed to get through congress. Causes like abortion-on-demand, gay-marriage, and others have been forced on the 50 states in spite of what choice the state may have preferred. No longer the impartial agent of the law, the high court and its lesser federal courts have become political actors whose power is unapproachable.
Understand that such power is not granted by the Constitution. The states nevertheless accept the court’s authority because… well, we’re accustomed to doing so. And although Hillary and her ilk mourn the loss of control over the de facto nine potentates that her side has helped create, even those that oppose rogue use of SCOTUS should likewise be terrified, because the game hasn’t changed, only the players.
The Constitution is very succinct about the Supreme Court’s authority. In it’s outline, the cases where it can be used are limited to clearly federal matters or some form of interstate dispute. However, the function that most Americans perversely identify with SCOTUS is strangely missing from the document, that of final arbiter of what is constitutional. In an act of unmitigated hubris and presumption, the court gave themselves that power in Marbury v. Madison, arguing that it was implied in COTUS. This was only the first of many lamentable examples of SCOTUS finding the constitutional invisible ink allowing the court to impose whatever standard they wanted. Thomas Jefferson rightly saw the establishment of judicial review by the court as placing us “under the despotism of an oligarchy,” and pointed out that only by amendment could such power be granted, saying:
The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
However, despite the admonishment and warnings of Jefferson, the court has little by little used this newly discovered power to act as unelected emperors of federal law, greatly extending the scope of federal authority into places un-enumerated by the Constitution and further eroding State and individual rights in the process.
Now, many on the right would argue this is only because the left has in past controlled the court, and that such power would be checked under the custodianship of the right, but would it? Certainly, the seduction of power knows no politics, and many otherwise well-meaning justices have fell to its siren-song. You may recall not so long ago that Republican-appointed Chief Justice John Roberts made it possible for the laughably unconstitutional Obamacare law to remain on the books, re-writing it from the bench so that it would be constitutionally-permissible. Roberts was widely touted as a strict-constructionist, but after being firmly ensconced in the seat of power, he found it convenient to abandon those principles and take some of the most egregious liberties ever exhibited by a justice of the high court.
Roberts was by no means the only example of a good-egg-gone-bad, once incubated on the high-bench. The same can be said of other Bush and Reagan appointees who, in addition to eschewing the court’s proper constitutional role, upheld some of the most awful decisions ever to cast a shadow over the statue of justice. Kennedy himself was such a disappointing appointment. And do you remember Sandra Day O’Conner? In addition to being a poor justice, she was a globalist who sought to elevate international law on par with the COTUS in domestic decisions. If the great Reagan got his SCOTUS selection so wrong, what are the odds that Trump, not really holding any firm convictions, will do any better? The right has a shot at something decent while the left is adamant in casting Trump as Hitler, as Trump’s decisions are motivated more-so according to who’s giving him the most love than any ideological compass. However, such Lear-esque favor is a volatile market, and not a good basis for a stabile governmental philosophy.
Texans may benefit if Trump nominates a Kennedy replacement that can (at least for the time-being) show judicial restraint. However, because there have been no attempts to check the accumulation of power in the judiciary, such an appointment can only be viewed as a temporary measure, a distraction from addressing the real problem: a lawless federal government, impervious to reform. Only when Texas reasserts full sovereignty over its own destiny will there be any meaningful effort to reign-in judicial power. Until that happens, the threat and practice of judicial overreach remains, both from entrenched SCOTUS progressives and conservative appointees who evolve for the lack of consequences for a reprobate justice.