The power of the five — that is what we will soon face. With the death of Justice Scalia the United States Supreme Court will never be the same if he is replaced by a Democrat presidential nomination. To get a sense of this read the article by Linda Hirshman entitled: “If Republicans block an Obama nominee to the Supreme Court, he wins anyway.”
I’ll let her explain: “the Supreme Court is now evenly divided between four liberal justices and four conservatives, even with Anthony Kennedy’s occasional swings”
Stop a second and consider that. What does it tell you about the law? Think hard! You got it? Let me digress a second so you’ll have a better understanding of her statement which she tosses off without a second thought, as does most of America.
When I was in law school many years ago we were taught basic law with none of the foolish electives that have been available over the past thirty years up today. We were taught that an essential part of the law was the doctrine of stare decisis which is Latin for “to stand by things decided.” That pretty much means when an issue has been previously brought to the court and a ruling already issued the courts will follow to the previous ruling.
Hirshman’s statement about the liberal/conservative split on the present court tells us that there really is no stare decisis. If the court is conservative it will decide a case one way; if liberal it will decide it another way. Tragically, our Supreme Court has become and adjunct of our political parties and no longer a faithful interpreter of the law. The judges decided cases not on prior cases but on their philosophies.
Maybe it has always been that way. I’m not a scholar of the Supreme Court so I cannot answer the question. But one thing for certain, it has never been so patently obvious that the Supreme Court is serving as an arm of our political parties.
What we have learned recently is that it has the ability to conjure up Constitutional rights through the use of the Fourteenth Amendment that no one knew existed at any prior time in our history. Justice Samuel Alito in the Obergefell decided within the last year said: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”
The late Justice Scalia said of the majority decision in the same case: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. . . . [These five judges believe they] are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.”
But Scalia was wrong when he said in that decision: “The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”
I suggest it is the most dangerous branch for precisely the reason that Justice Alito suggested namely that: “a bare majority of Justices can invent a new right and impose that right on the rest of the country, . . . “ We have seen the heavy hand of the executive arm in action when it imprisoned a court clerk who refused to follow the Court’s decision.
Sadly Scalia was also wrong when he said: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
I suggest the people are impotent in the face of Supreme Court decisions. With the vast power of the federal government standing by willing and able to enforce the Court’s whims and to intrude into areas rightfully left to the people we have no recourse. Who can stand up to the mighty federal forces that now exist?
The Supreme Court is on the brink of stealing our democratic rights.