Black-robed oligarchy
One thing that has come up during the confirmation hearings for Judge Amy Coney Barrett is where a judge’s reading of the Constitution and Supreme Court precedent disagree. In such cases, what is a judge to do? One of the falsehoods that have had a subtle yet gradually harmful effect on America’s understanding of the judiciary is a belief that Supreme Court opinions carry such weight that they cannot be interfered with or overturned. It’s almost as if they are written in stone by the finger of God and given to Moses. Not even the Supreme Court itself has demonstrated a belief that its opinions are free from potential alteration. Former Director of Issues Analysis for the American Family Association Bryan Fischer made the point on March 16, 2018, that the justices opined in 1986 that homosexual behavior could be criminalized. In 2003, they said that it couldn’t. In 2013, the Court said that same-sex marriage was a state matter. In 2015, the majority issued an opinion that it was not. Now either the Court was right in 1986, 2003, 2013, or 2015, but it could not have been right all four times. In other words, every time it reverses itself, the Court admits that it is capable of errors that require judicial correction. Visual journalist Amanda Shendruk noted in the same year of Fischer’s article that the US Supreme Court had overturned its precedents 236 times.
Fischer went on to rightly point out that the Court itself does not even call its decisions “rulings.” The word they use is “opinion.” Every judgment they make is an opinion, not the law of the land. Only one of our three branches of government writes the law, and that is the legislative branch. Article I, Section 1 of the United States Constitution states that all — not some, not most — legislative powers granted shall be vested in a Congress of the United States, consisting of a Senate and House of Representatives. Public officials, including judges, take oaths to the Constitution, not to court precedent. Court opinions only bind to the direct parties involved, not on anyone else, and certainly not on the entire country. Fischer continued that during the New Deal controversies, courts concluded that one new tax was unconstitutional more than 1,600 times. They issued more than 1,600 injunctions — each applying only to the plaintiff in the case. Alabama was being harassed for not granting same-sex marriage licenses after the 2015 Supreme Court opinion on gay marriage legalization. Concerning the application of Obergefell to Alabama, then-Chief Justice Roy Moore said that the Court’s ruling in Obergefell applied only to the 16 plaintiffs who were in front of the Supreme Court that day. He readily accepted that they could get same-sex wedding licenses. But since Alabama wasn’t in court that day and had no opportunity to make its case, the ruling didn’t apply to Alabama citizens and the courts. To apply it to them essentially meant the Court was punishing them in absentia and without due process.
Although I have been quoting from Mr. Fischer’s 2018 article, which heavily used examples about homosexuality issues, applying this reasoning to the questions that Judge Barrett has received in these hearings goes beyond potential future rulings about same-sex marriage. It should apply across the board and does when the Constitution is being adhered to. When precedent conflicts with the Constitution, the Constitution must be obeyed. To not do so would be the equivalent of a Christian giving church tradition equal or greater weight than the Bible itself. I could go farther with that, but that could open up a whole other debate that is not the point of this post.
James Madison wrote in Federalist 51 that the legislative authority necessarily predominates. Alexander Hamilton wrote in Federalist 78 that the judiciary has neither force nor will. He noted that the courts would always be the least dangerous to the Constitution’s political rights from the nature of their functions. If only he were alive today to see how it has usurped so much authority. All the while, elected leaders and an entire population ignorant of the courts’ proper role willfully submits. Lest there be any doubt about what Hamilton is saying, he continued, writing that the judiciary is, beyond comparison, the weakest of three departments of power. He confidently yet incorrectly (in hindsight) said that our judicial branch could never endanger the people’s general liberty. I wish that’s how Judge Barrett would have answered the questions she was asked about precedent and the court’s role. Even more so, I wish that’s how all judges still viewed the issues of precedent and the reach of their opinions compared to the actual legislative process. Unfortunately, perhaps even among the best judges, it doesn’t seem to \work that way anymore. The people and the media give so much attention to Supreme Court nomination hearings. The Supreme Court was the number one issue for Trump voters in 2016. And that’s why Barrett’s confirmation would be huge right now, because the judicial branch of government has, with our blessing, become a black-robed oligarchy.
