Two key decisions rendered by the Federal Judiciary this week severely challenge not only the foundational institutions of our society, but the fundamental operation of our republic.
The U.S. Supreme Court announced this week that it opted to not hear appeals by five states regarding their traditional marriage laws. Utah, Virginia, Indiana, Wisconsin, and Oklahoma all had laws on the books defining marriage as a contractual institution including a man and a woman that had been appealed to the Supreme Court from lower courts. The net effect is that judicial decisions at lower levels against those state laws will now stand, opening the way for same-sex marriages in those states.
The Supreme Court’s rationale to not hear the cases may well have been portended by Justice Antonin Scalia last month in Bozeman, MT when he said, “It’s not up to the courts to invent new minorities that get special protections that are not subject to the usual rule that you have to get the majority to agree with it.”
Even more disconcerting is the decision by three judges from the 9th Circuit Court of Appeals regarding Idaho and Nevada’s laws supporting traditional marriage. A three-judge panel from the 9th Circuit, consisting of Judges Stephen Reinhardt, a Carter appointee from Los Angeles; Ronald M Gould, a Clinton appointee from Seattle; and Marsha S. Berzon, a Clinton appointee from San Francisco, struck down state laws reaffirming marriage between a man and a woman. Since the Supreme Court will not hear state’s appeals on the issue, same-sex marriage is a fait accompli not only for Idaho and Nevada, but inevitably in all 50 states.
Our federal judiciary has become, arguably and disturbingly, an oligarchy. When they rule on the “constitutionality” of an issue it is assumed to be the final say in whether a vote of congress or the vote of the people via referendum or initiative is legitimized or annulled. This is not how the Supreme Court and its substrata of appellate courts were intended to operate, nor is it de facto the way it should be.
The federal judiciary, as it has evolved, has unchecked and unlimited power over the nation by either of the other branches, the executive or the legislative, or even the people. Its members are not accountable to the citizenry, since most of their appointments are for life, and they cannot be removed from the bench by a vote of the people they purportedly serve. Their ruminations and the results of their decisions are insular and they often trump the will of the people with regard to key social issues. Their decisions are presumed to be final, even though they may be at odds with the democratic majority of our citizens.
Herein lies the fundamental problem about the present construct of our federal judiciary as it has evolved since the founding. If, as stated in the 10th Amendment, all “rights and powers” not specifically itemized in the Constitution are held by the people collectively or by the states, what right does a court have to negate the will of the people? As it relates especially to key cultural issues like abortion, public religious displays, and definitions of marriage, should not the final court be the court of public opinion, rather than an oligarchy of judges insulated from, and not accountable to the citizenry? In most of these cases, state courts have ruled, and appeals are then made to the federal judiciary.
Thomas Jefferson portended this judicial despotism. “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.”
Justice Scalia said recently, “I question the propriety, indeed the sanity, of having a value-laden decision such as same-sex marriage made for the entire society by unelected judges.” That sentiment is echoed by Chief Justice John Roberts. “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire,” he said. Clearly, though, the judiciary is doing just that, making the rules, when they essentially legislate from the bench.
According to Reuter’s research published in January, 2014, Democrat appointees to the federal bench are a slight majority, at 50.5% of the total federal judiciary. In their book “The Behavior of Federal Judges,” researchers Lee Epstein, William Landes, and Richard Posner, document how Democrat appointees rule on the bench more liberally than Republican appointees rule according to strict constructionist interpretations. Given that verity, and the growing majority of liberal judges in the federal judiciary, the continued unraveling of “democratic rule” by the federal judiciary in America is perhaps a forgone conclusion.
Jefferson clearly understood the system of checks and balances on the respective powers of the three branches of government. As he said in a letter to Abigail Adams in 1804, “The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” It has obviously become a despotic branch since it can overturn the will of the people as expressed even in referenda or initiatives.
Liberalism and progressivism have been able to successfully advance elements of their agenda through the judiciary that they have been unable to accomplish at the ballot box or through elected officials. Since federal judges are appointed by the President and confirmed by the Senate, those positions should be recognized as the key to preserving the slight semblance of the American republic as envisioned by our founders. As it appears now, that vision is rapidly evaporating.
Associated Press award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, Idaho and is a graduate of Idaho State University with degrees in Political Science and History and coursework completed toward a Master’s in Public Administration. He can be reached at [email protected].