DARK DAYS AHEAD FOR THE RULE OF LAW?

By: Dr. John C. Eastman

Posted: July 2, 2015

As you have undoubtedly heard by now, the Supreme Court held in King v. Burwell last Thursday that massive appropriations authorized by Congress to provide subsidies for health insurance policies purchased through exchanges “established by the State” could be unilaterally redeployed by President Obama and his administration to be used for health insurance policies purchased through exchanges not “established by the State,” as the statute specified, but also through exchanges established by the federal government. Then, on Friday, in Obergefell v. Hodges, the Supreme Court found lurking in the 150-year-old text of the Fourteenth Amendment a right to same-sex “marriage” that renders null and void laws defining marriage as between a man and a woman that have existed not just in every state since our nation’s founding, but pretty much in every society throughout human history. This decision provoked the memorable line in dissent from the Chief Justice: “Just who [in the hell] do we think we are?” (OK, I added the parenthetical phrase, but it certainly fits the tone of the dissenting opinions.)

To say that these decisions by the Supreme Court were a disappointment would be a huge understatement, even if they were predictable. The Court has now twice distorted basic rules of statutory construction and constitutional authority to uphold a patently unconstitutional health care law that was jammed through Congress against the will of a large majority of the American people. It has thrice substituted its judgment about the morality of homosexual conduct for that of the American people, “coincidentally” all three times on the same date, June 26, a day that will now undoubtedly be celebrated by homosexual rights advocates as a national holiday but which should rather be viewed as a day of infamy. (I put “coincidentally” in quotes, because there is evidence that the opinion’s release was expedited and the ruling handed down before the opinion was even printed, suggesting that the decision was deliberately timed to fall on the anniversary of Lawrence v. Texas in which the Court struck down Texas’s criminal prohibition of sodomy in 2003, and United States v. Windsor, in which the Court invalidated portions of the federal Defense of Marriage Act defining marriage for purposes of federal law as one man and one woman.)

As troubling as these decisions are for the underlying policies they have now imposed on the American people, even more troubling is the utter disregard for the law that was necessary for the Court to arrive at its conclusions. Words no longer have any meaning, as Justice Scalia scathingly noted in his Obamacare dissent, if “exchange established by the State” can also mean “exchange not established by the State.” I commend to your attention Justice Scalia’s full dissenting opinion, as it destroys the “reasoning” offered up by Chief Justice Roberts in the majority opinion in that case on every point. Nor do the words and original intent of the Constitution have any meaning if a phrase intended to prevent government from throwing people into prison (that is, depriving them of their “liberty”) without due process of law can be morphed by the vote of five unelected judges into a command (a diktat, actually) that every state across the land redefine one of the most basic institutions of civil society. 

The question is: what are “We the People” going to do about it? The various dissenting opinions have some startling—but, it would appear, now necessary—suggestions. After calling the Court’s decision in the marriage cases “pretentious” and “egotistic,” an exercise of “hubris” that threatens the very authority of the Court, for example, Justice Scalia reminded us that the Court was designed to be the least powerful branch, because it depends ultimately on the other branches even for enforcement of its judgments. Every decision that the Court issues based on the raw will of the Judges (as the marriage case clearly was) rather than the rule of law moves the Court “one step closer to being reminded of [its] impotence,” Justice Scalia added. That is as bold an invitation to noncompliance with a decision of the Court as has ever issued from the pen of a Justice, approaching those offered by Abraham Lincoln and Thomas Jefferson. Toward the end of his life, Jefferson wrote down a good description of his views on the subject of judicial supremacy: “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” And in his first inaugural address, Lincoln rejected the binding authority of the Supreme Court’s notorious decision in the Dred Scott case mandating the expansion of slavery throughout the nation. Although he viewed the decision as binding on the parties to the case, he added what remains the most profound rejection of the pernicious doctrine of judicial supremacy:

At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

In his dissenting opinion in the marriage cases, Justice Thomas urged a return to the original understanding of “liberty” as a remedy, but as Justice Alito pointed out in his own dissent, the Court’s decision proves that “decades of attempts to restrain this Court’s abuse of its authority have failed.” Some have called for clarifying constitutional amendments, but what would the amendments say? In reaction to the Court’s acting like a legislature to re-write the Affordable Care Act, should we amend the Constitution to say that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”? That language would make clear that it is Congress, not the Court and not the Executive, that alone has the power to make laws. But it is already part of the Constitution—right there in the very first sentence of the very first section of the very first article. And should we add an amendment that says the powers not delegated to the United States by the Constitution—and there is no such delegation of power over the law of domestic relations, including marriage—nor prohibited by it to the States, are reserved to the States respectively, or to the people? Oops. That’s already there as well, right there in the Tenth Amendment.

No, it seems that something more than just a correction amendment is required—something structural, as Justice Alito appears to be suggesting. Senator (and presidential candidate) Ted Cruz has already proposed an amendment that would subject judges to retention elections. Others have proposed term or age limits for judges, but in truth, those proposals would not prevent judicial abuse of power, just limit the time in which specific judges could exercise it. What we need, rather, is a revival of the structural checks on the judiciary of the sort that the Founders envisioned. In his dissent from the Obamacare ruling, Justice Scalia hints at just such a thing. “We lack the power to repair laws that do not work out in practice,” he wrote, “just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.” Think about that passage carefully. When read in light of the fact that Justice Scalia had just accused the Court of exercising a legislative power that it lacked, one gets the distinct impression that Justice Scalia is inviting the people to throw out of office judges who exercise powers not given to them by the Constitution, since their ability to do so is “just as” available as the Court’s power to legislate. 

Actually, the constitutional authority for the people to throw judges out of office for such misbehavior is on much more solid ground than Scalia credited. Judges do not have life tenure, as is often erroneously claimed. They “hold their Offices during good Behaviour,” according to Article III, Section 1. They can be impeached, and although normal errors in decision-making from the bench would not constitute the “high crimes and misdemeanors” necessary for impeachment, an utter and repeated disregard of basic constitutional authority would undoubtedly have been viewed by our nation’s Founders as not just sufficient to trigger the impeachment clause, but conduct that would have made impeachment necessary. Unless, that is, We the people have truly ceased to be our own rulers, having practically resigned our government into the hands of that eminent tribunal.

Related Article:
"The Supreme Court Has Legalized Same-Sex Marriage: Now What?" National Review