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.
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