As a supporter of the Constitution and the liberties it protects, I am always on alert to challenges made by politicians and their supporting media that attack the legitimacy of the Supreme Court. We all know the GOP-led efforts to delegitimize presidents (Clinton impeachment, Obama-birther movements, Clinton as the front-runner for 2016, et al), and we now have a full frontal assault on the High Court. If you think I am exaggerating, just read some responses to the Court's decisions from some of the current crop of GOP presidential contenders. Can you match the following statements with their speakers? Give it a try!
a). "I will not acquiesce to an imperial court any more than the Founders acquiesced to an imperial British Monarch!" "We must resist and reject judicial tyranny, not retreat!" Is the Supreme Court "imperial" and on a par with the British monarchy we rebelled against? Really? That's like comparing a cold to stage four cancer. The differences between the two are so vast, only a simpleton would see merit in such a statement. But it plays well in the Ideologically-Oriented For-Profit Media!
b). "The Court's decision is "the very definition of lawlessness!" The Court engaging in "lawlessness" is equally absurd. Since Marbury v. Madison (1803) the law IS what the Supreme Court says it is. But the uneducated love leaving their thinking to others. Judicial tyranny - that alone makes me cringe at how ignorant such a statement is.
c). "This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree!" Once again, the mere thought that same-sex marriage is a direct assault on religion and the freedoms we have is both laughable and disturbing. The 14th Amendment guarantees each State abides by our fundamental rights - not just for those self-ordained "holier than thou's." Equal Protection and Due Process protect all of our rights. So where is the real problem? There is none, but it sure stirs up the emotions of the ignorant. Although I am religious, I fear those pushing their religion onto me more than I fear homosexuals pushing their sexual preferences upon society. Why is it so difficult for devout "Christians" to appreciate the fine-line between expression and oppression? Why can't some of these folks recognize that they would have a serious problem protecting against an "all-out assault against the freedom rights of all Muslims?"
d). "As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood!" Demanding future justices comply with the original meaning of the Constitution is also ridiculous. Originally, men owned other men, women had no rights and society was totally different than what we have today. I suspect gun owners would not appreciate having their gun rights limited to a single shot musket. The inherent problem with this idea is upon whose interpretation of the Constitution would you then rely upon if you disagree with the duly appointed and confirmed Supreme Court? If you wish to toss out the Constitution, then you will also be tossing out all of your other protected rights (Speech, Religion, Press, Petition, Due Process, Bear Arms, etc.).
e). "I believe the Supreme Court should have allowed the states to make this decision." Using the Tenth Amendment argument is lame. Folks think it reserves all the powers to the States when in fact, very little is left to the States. It doesn't say anything about the Federal Government in the 10th Amendment - it says United States. And if these folks are so bent out of shape about the erosion of the 10th Amendment, where were they to protest the Supreme Court when it interfered with Florida's 2000 presidential election? Partisanship is a bitch, right?
f). "Today, 5 unelected judges redefined the foundational unit of society. Now it's the people's turn to speak!" If someone firmly believes the voice of the "People" must be heard in response to the High Court's ruling on Same-Sex Marriage, then get in line. I can think of a number of Americans that would start instead with reversing the Court's rulings in Citizens United, McCutcheon, and Hobby Lobby (to name a few).
g). "Once again, a Bush appointed Supreme Court Justice Roberts has let us down!" It's all Bush's fault. Nice comment, conveniently tying angst with the Supreme Court to a Bush (when another Bush is also running in 2016). Nice overt politicalization for the moment!
h). "I'm a firm believer in traditional marriage and the 10th Amendment leaves it to the States to decide this issue." Same as e. Ever hear of Separation of Church and State? Claim there is no such thing? See Lemon v. Kurtzman, http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-chemerinsky/first-amendment-religion/lemon-v-kurtzman/ (1972).
i). "The states are the proper place for these decisions to be made, and as we have seen repeatedly over the last few days, we will need a conservative president who will appoint men and women to the Court who will faithfully interpret the Constitution and laws of our land without injecting their own political agendas." Same as 'e', but not every American is a Conservative. I guess all laws must be determined by less than half of the population in order to be legitimate (except see the argument in g).
j). "This is only the latest example of an activist Court ignoring its constitutional duty to say what the law is and not what the law should be. I believe that responsibility should have remained with states and voters where this conversation has continued in churches, town halls, and living rooms around the country." See 'e' again (beginning to see a "talking point" - soon to be a GOP narrative?).
k). "I believe marriage is between one man and one woman, those changes should be done by a vote of the people." See 'e' again. The Framers distrusted the "people" so much they created institutions to protect us from ourselves - like the Supreme Court!
l). "Unelected judges have once again become legislators and bad ones at that. They are lawless, and they hide their prevarication in legalise. Our government was designed to be one of laws, not men. The court has thrown its very legitimacy into question." "Prevaricate with legalese." What a strange statement from a lawyer, right? And using it to question the legitimacy of the Court because they "lie" when issuing legal statements? What are court rulings if they are not filled with "legalese?"
There are more, but you get what I mean. Somehow, after more than 200 years, politicians concluded only just now that the Supreme Court's very existence should be questioned? While they cynically portray the High Court as "unelected", "delegitimate" and outside their Authority, they know themselves are the ones distorting and twisting the powers of the Court. Not to lead a way towards improving our nation, but by pandering to an uneducated and hyper-partisan audience. Not to build support for a united country, but one that takes advantage of a severely divided one - all based upon a false narrative. How can one claim a religious right under the Constitution while ignoring the legitimacy of the Court found in Article III of that very same Constitution (or the centuries of stare decisis promulgated by this Court)?
Okay, the speakers of these terrific notions? a). Mike Huckabee, b). Ted Cruz, c). Bobby Jindel, d). Marco Rubio, e). Jeb Bush, f). Rick Santorum, g). Donald Trump, h). Rick Perry, i). Scott Walker, j). Carly Fiorina, k). Chris Christie, and l). Ted Cruz.
Of course when the Court rules in a way that satisfies these folks, the praise is overwhelming (see NLRB v. Canning (June 26, 2014)), but it is totally "lawless" when it rules against their ideology (based more on partisan political leanings than objective legal reasoning). This is the height of hypocrisy. Want to know how the Framers really felt about role of the High Court?
"...The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body... Alexander Hamilton, Federalist 78 , (1788). I couldn't put it any better! Can't we get real candidates for the presidency instead of pandering wannabes more interested in partisan fame and money? Have a great week!