By Mike Kapic – July 19, 2023
Reading time: 12 minutes
It is hard for Americans to justify the fact that SCOTUS, the Supreme Court of the United States, is working for itself and not we the people. That the rulings provided by it have varied considerably from good to very bad. The Founders believed the institution would never act extremely or radically. They assumed, right or wrong, the Court would have the least amount of power of the three branches and yet protect the people from abuses from the other two branches. They counted on the States and Senate to keep it loyal to the people by the Freedom Charters and apolitical. It didn’t work out that way. There have been many very visible exceptions to misinterpretation and misguidance taking America away from our Freedom Charters.
The following is an excerpt from the 2023 book, Politically Incorrect Guide to the Supreme Court by John Yoo and Robert J. Delahunty and published by Regnery Publishing.
The authors expose the workings, thought and politics behind the history of some of SCOTUS’s rulings.
‘Is this the way the Framers intended the Court to behave?’ I would answer in a firm, No! We encourage you to read this and other examples of Constitutional abuse of our Constitution to draw your own conclusions.
My, How Things Have Changed
The Court’s supremacy in our lives is recent—and runs counter to American history. Abraham Lincoln, for one, did not believe that the Supreme Court should have the vast power that it wields today. Lincoln rose to prominence because of his opposition to Chief Justice Roger Taney’s opinion in Dred Scott v. Sandford that blacks could never become citizens of the United States and that the federal government had no power to limit the spread of slavery in the territories. In his first inaugural address, delivered even as the South descended into secession, Lincoln made clear his opposition to the Court. “I do not… deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit,” he said. Decisions of the Court should receive “very high respect and consideration, in all parallel cases, by all other departments of the government.” At times it might even be worth following erroneous decisions because the costs of reversing them could be high. But, Lincoln argued, “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 people will have ceased, to be their own rulers, having to that extent, practically resigned their government, into the hands of that eminent tribunal.”
[A Book You’re Not Supposed to Read A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia. Princeton: Princeton University Press, 1997.]
On this question, as on many others, Lincoln understood the deeper structures of American politics and society. He was also harking back to an older understanding of constitutional interpretation, one closer to the Founding. In our nation’s early years, the president and Congress decided the great constitutional questions first, and the Supreme Court followed years later. On, for example, the great question of whether the United States could operate a national bank—the precursor to the Federal Reserve—President George Washington fully aired the constitutional arguments when deciding whether to veto the bill to establish the bank. Secretary of State Thomas Jefferson argued in the cabinet that the bank exceeded the limited powers of the federal government, and Congressman James Madison opposed it on the floor of the House. Secretary of the Treasury Alexander Hamilton, however, persuaded President Washington that the bank was “necessary and proper”—in the words of Article I, Section 8, Clause 18—to the execution of explicit constitutional powers granted to the government. That was all in 1789, the first year of our Republic under the new Constitution. The Supreme Court would not address the national bank for thirty years, until McCulloch v. Maryland. We can tell the same story of the nation’s struggles over the powers of the presidency, federal versus state power over the economy, military conscription, states’ rights, freedom of speech, and the spread of slavery. Before the Civil War, the great debates over these and other constitutional issues arose between figures like Madison, Hamilton, Jefferson, James Monroe, John Quincy Adams, Andrew Jackson, Daniel Webster, John Calhoun, Abraham Lincoln, Stephen Douglas, William Lloyd Garrison, and Frederick Douglass in the halls of Congress, the state legislatures, public meetings, election campaigns, pamphlets, and the press. Rarely did the Supreme Court get there first.
Today, the Court has expanded its power to decide society’s important questions while the president and Congress watch from the sidelines. Gay marriage is a case in point. Until the twenty-first century, both the federal government and virtually all states had refused to recognize same-sex marriages. In 2008 that deeply blue state, California, had voted by popular initiative to ban gay marriage, and Democratic Party nominee and President Barack Obama had campaigned in 2008 and 2012 against it as well. Over time, however, several states had legalized such unions, and attitudes began to change, particularly among the young. Then in 2015, in Obergefell v. Hodges, the Supreme Court held that the Constitution itself, through the Due Process Clause of the Fourteenth Amendment, required all states to recognize gay marriage. In order to reach that result—while refusing to find that gays, like racial minorities, constituted a class entitled to heightened judicial protection—the Court had to declare that any restriction singling out gays could only arise out of malicious hatred rather than rational public policy. While this made for a clear rule of law, it effectively ended prospects for political compromise. After all, the Supreme Court found that restrictions on gays could arise only from bigotry. Rather than allowing societal change to come about through debate, give-and-take, and compromise in the states, the Supreme Court decided to short-circuit the political process and seize control over the issue.
This development makes Lincoln’s challenge even more acute: How do we reconcile the Court’s authority to interpret the Constitution with the people’s right to govern themselves? How do we define the line between constitutional law, on the one hand, and politics, on the other? Progressives answer by denying that any such dividing line exists and demanding that we treat law as just another form of politics. We saw this attitude on display during the 2019 Senate confirmation hearings on Brett Kavanaugh’s appointment to the Supreme Court. Progressive senators, supported by their expert witnesses, advanced a view of judges as simply enablers of a political party’s policies. They cross-examined Kavanaugh on his decisions based on whether the outcomes favored certain interest groups: minorities, women, environmental organizations, and the like. In their view, it would seem that the only difference between a judge and a member of Congress is that the former wears a robe.
[Unequal Justice? President Obama said he was looking to appoint judges with ‘empathy’24—though no one thought he meant empathy for corporations of the police.]
Two Ways of Judging
If judges simply advance political goals, then progressives are at least honest in their desire for a judge who favors their causes and supporters. Under this view Democrats should only pick judges who rule in favor of unions, racial minorities, and criminal suspects. Republicans should only want judges who always rule in favor of business or landowners. The courts only provide a different kind of arena—one populated by lawyers, judges, and legal arguments instead of candidates, campaign platforms, and elections—for the fundamental political struggle for control over society.
[Judging, or Legislating? In 2005, at a panel discussion at Duke University, the future Justice Sotomayor stated, “All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is—Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law.’ ” Sotomayor’s mocking tone made clear that she was deriding the idea that judges “don’t ‘make law.’ ”*]
[* Robert Alt and Deborah Malley, “Key Questions for Sonia Sotomayor,” The Heritage Foundation, July 10, 2009, https://www.heritage.org/report/key-questions-sonia-sotomayor/#_ftn1.
Our constitutional order rejects this politicized approach. Judges must be blind to the race or gender, wealth or beliefs of the parties who appear before them. In Chief Justice John Roberts’s metaphor, judges are umpires who call balls and strikes but do not play in the game itself. In other words, as even the progressive Justice Elena Kagan put it in her confirmation hearings, “The question is not, ‘Do you like this party or do you like that party? Do you favor this cause or do you favor that cause?’… The question is what the law requires.” Justice Sotomayor, who accepts that the judicial function subsumes policy-making, is an outlier. (Emphasis mine)
Who wins and who loses should not be the point of a court case. It’s the method that judges use to interpret the law and apply it to the parties that matters. Thomas Jefferson viewed judging as a mechanical exercise. He hoped that judges would take the law written by the legislature and apply it to the facts presented by the parties with as little discretion as possible. Of course, judging is not easy, and judges are human. But the ideal is that everyone is equal in the court of law—that there are no favorites before blind justice—is as old as the Republic itself. Properly applied, it would vindicate Hamilton’s prediction that the courts would be the “least dangerous [branch] to the political rights of the Constitution.”**
[** Hamilton, Federalist, no. 78, 402] (Emphasis mine)
[A Book You’re Not Supposed to Read The Least Dangerous Branch: The Supreme Court at the Bar of Politics by Alexander M. Bickel. 2nd ed. New Haven, Connecticut: Yale University Press, 1986.]
These two opposing visions of the courts have given birth to distinct approaches to judging. The first approach has a lot in common with the way state judges decide the cases that Americans are most likely to encounter in their personal lives: criminal trials, contract and property disputes, and civil lawsuits over accidents. Judges in these cases apply what is known to lawyers as the “common law,” which we inherited from Great Britain and which is still the foundation of the law of the states. Common law judges are free, within constitutional bounds, to create the rules as they see fit, when they apply established precedents to novel situations. They often exercise the equivalent of legislative power—when they, rather than the elected legislature, make rules on property, contract, and torts—though most states check this power by subjecting judges to regular elections. Importing the common law model into the federal judiciary, however, will create judges who do not feel themselves bound by the written Constitution or by the laws enacted by Congress. Supreme Court justices will find themselves tempted to lead the people to where they “should be,” rather than to apply the legislation that reflects where the people are. There will be nothing to limit a justice but his imagination and his fellow justices.
[Might Makes Right? The great liberal justice William J. Brennan reportedly said that the most important rule in the Supreme Court is the “Rule of Five”: the number of justices needed to produce a majority, and hence the power to change the law. ***]
[*** H. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (Chicago: University of Chicago Press, 2008), 16]
The alternative, conservative view, as expounded by Chief Justice Roberts at his confirmation hearing, is that the judge is an umpire—as bound as a philosopher-king is free. An umpire judge relies on a few basic principles: The people, through their elected representatives, make the law. The law is composed of words, those words have meaning, and that meaning is fixed at the time of the law’s passage. The judge must determine the words’ meaning as understood by those who enacted the law. This method of judging is called “originalism” when applied to the Constitution and “textualism” when applied to statutes or regulations. The terms originalism and textualism are of recent vintage, but the methodology they represent can be traced to the beginning of our nation. (Emphasis mine)
[A Book You’re Not Supposed to Read A Debt against the Living: An Introduction to Originalism by Ilan Wurman. New York: Cambridge University Press, 2017.]
[A Book You’re Not Supposed to Read Common Good Constitutionalism by Adrian Vermeule. Cambridge, United Kingdom: Polity, 2022.]
Originalism is superior to the common law approach of judges who enact their own policy preferences in their “interpretation” of the law. Originalism is the only legitimate way for a Supreme Court justice to approach the job. As Alexander Hamilton noted in The Federalist No. 78, “Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Supreme Court justices who exercise their will rather than their judgment misuse their judicial power.
Further, common law–style judging by Supreme Court justices weakens our Republic. It takes sovereignty away from the people and places it in the hands of five justices who, by design, have been given political independence. Allowing a majority of the Supreme Court to amend the Constitution or a statute is anti-democratic—particularly in the constitutional context. Legitimately amending the Constitution takes supermajorities of Congress and the states, just as a supermajority of the original thirteen states had to adopt the Constitution in the first place. The Bill of Rights and the Reconstruction Amendments, which recognize and protect our individual rights against the federal and state governments, had to pass this supermajority bar. Allowing five unelected justices to overrule the will of the people as expressed in the Constitution and our laws upends our constitutional system. The fundamental tension that afflicts the current Supreme Court—between fairly interpreting a Constitution that is designed to restrain the majority, on the one hand, and, on the other, falling prey to the temptation to use the Constitution to advance a judge’s own preferred policies—has lain at the center of our constitutional history from the very beginning. It is to that history we now turn. (Emphasis mine)
For our babies, our children’s sake, our grandkids, our great grandkids sake, this malfeasance must cause us to stand up, speak up and show up and put a stop to the lunacy going on in Washington DC. Lunacy that serves the politicians but not us or our progeny. Those who will remain patriotic to America and help her when she needs it in the future.
The Founders of our Nation told us they knew that the Constitution was not perfect. They admitted this when they added the method for either Congress or the States to propose altering it as needed. It is the first two clauses of Article V that authorize proposed changes to the Constitution to correct the path of the experiment.
Congress has proposed changes to the Constitution over 12,000 times while the states have met in convention to solve problems congress or legislatures could not over 650 recorded times. Being a part of human nature, Congress does not want the States telling it how the United States should operate. We have the know-how; it just requires the courage to take a stand in returning this Nation to God and to the consent of the governed.
Resources for further information:
The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded government and Eroded Freedom by Robert Levy, William Mellor
An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know By Randy E. Barnett and Josh Blackman
The Liberty Amendments: Restoring the American Republic by Mark R. Levin
Article V Law by Rob Natelson
The Legal Basis for a Moral Constitution: A Guide for Christians to Understand America’s Constitutional Crisis by Jenna Ellis Esq.
Amending the Constitution by Convention: A Complete View of the Founders’ Plan by Robert G. Natelson