The original order of importance of the branches is reflected in
the order of the Constitution’s articles, historian Ron Chernow
recently observed. Article I addresses the legislative branch,
Article 2 the executive, and Article 3 the judiciary. In this case,
last was supposed to mean least. Yet today in ways the founding
fathers could not have imagined the weakest branch has become the
dominant branch on which the country’s direction swings.
The circus-like atmospherics and hysteria surrounding the
upcoming confirmation fight underscores the extent to which Supreme
Court justices now largely rule America. Recognizing this fact, the
country is acting as if a Constitutional Convention is coming up,
and in a de facto sense one is. The confirmation hearings will in
effect determine the new signatory to the ongoing Constitutional
Convention that the Supreme Court has become.
As clear in this week’s rhetoric — Democrats like Ted Kennedy,
in their demands for the next candidate, don’t even mention
fidelity to the Constitution but to “constitutional values” — the
search is not for a modest judge who will follow the supreme law of
the land but for an ambitious signatory who will write a new one.
From ruling to ruling the new justice will be expected to write up
the form of government under which over 280 million people will
live.
With stakes this high, hysterical lobbying is inevitable. The
only surprise is that it is not greater. Activist justices and the
liberal political class that goads them on — even as they cravenly
keep one eye on the crowds — still bank on the docility of the
American people. The justices operate on the assumption, revealed
in their casual and repeated discarding of state laws, that the
American people are chumps who will stand idle as a handful of
judges steal the direction of their country away from them. They
trust that the American people will never behave as lawlessly and
audaciously as they do — that it won’t occur to the people that
they too can join in the jostling for power.
Whenever the Supreme Court hands down a nakedly unconstitutional
opinion, I always wonder what protects these lawless judges,
besides the usual sluggishness, inattention, and fear of people who
aren’t yet ready to address tyranny. Nothing in principle would
seem to protect lawless judges, for their own rulings tell the
American people that the law is nothing more than the will of
whoever has the most nerve to seize it.
Won’t the American people at some point, having been taught by
lawless judges that the law is the just the will of the strongest,
march on courthouses and throw these judges out on the streets?
Won’t they at some point ask themselves: If Supreme Court justices
don’t have to obey the words of the Constitution, why do we have to
obey theirs?
With each new activist ruling, the Supreme Court justices saw
off a little bit more of the branch on which they sit. Every time
they reject the authority of the Constitution in favor of their
personal opinions signals the end of their own authority as it
derives exclusively from the document they are spurning.
Activist justices who have tried to turn the weakest branch into
the strongest may end up as powerless as their earliest
predecessors, who, as Ron Chernow writes, wandered about court-less
and on horseback after Congress moved to contain them.
“In March 1802, the House of Representatives, in a vindictive
mood against the Federalists, repealed the Judiciary Act by an
overwhelming margin (the Senate had already passed the repeal by a
one-vote margin). When Hamilton and other Federalists tried to
appeal the constitutionality of this action before the Supreme
Court, the Jeffersonian Congress brazenly cancelled the next two
terms of the high court, disabling it for the rest of the year,”
writes Chernow.
“With no new circuit judges to take on cases,” he continues,
“the members of the high court went on wearily riding the back
roads of America. When in Washington, they met not in a marble
temple but in a noisy basement chamber of the Capitol.”
The Court’s own example of lawlessness has set in motion the
chaos that will consume it. Confirmation-fight fiascoes in the
noisy chambers of the modern Capitol are just the beginning of
it.
