We wanted the Supreme Court we got and now we don’t want it
While following the socalled “Trump hush money trial,” I flashed back to a time when I was had jury duty. The case was really a marital dispute gone wrong. It was a matter that should never have reached trial. The core problem could not be resolved in a court.
This is the story of the last 60 or 70 years in the United States, writ small. We try to fix things in the courts that cannot be fixed there.
The monster we created
Difficult matters wind up in the courts when other institutions — families, universities, state legislatures, Congresses — fail to address them. And the courts do their best. But courts are not designed to legislate or to educate or to heal.
Indeed, they are not really designed to “do justice.” They are designed to undo obvious and grave injustices. They are designed to do an unemotional and limited justice.
The problem is that we want more. We want a fix; a solution; an answer, now. Fix the abortion problem; the gun problem; the Trump problem, now.
And we have created a monster — the modern Supreme Court.
It began with the Warren Court taking on the problem of racial segregation. The Court was not content with finding segregation unconstitutional. It took upon itself the larger goal of curing race discrimination. (And placed much of the burden on schools, where we still place much of the burden.)
This was well intentioned and in some cases legally justified. But it was the beginning of judicial activism. Over the last 60 years, the high court has seen fit to weigh in on abortion (first partially legalizing it and three generations later undoing that), affirmative action, and even presidential elections.
Again, limitlessly good intentions, And almost unlimited hubris. What makes anyone presume he can determine when life begins? Or when and where the
privacy (and the implied privacy rights) of a fellow citizen should begin and end?
The current Supreme Court majority is political all right. But it’s worse than that. They think they are entitled. They know best. So their recklessness is justified.
Supreme Court justices, by interpreting constitutional law, make new law. This is inherent in the institution. But over the past several decades, interpretation has turned to wholesale creation. The justices now, like gods, imagine their whims into life; into law. If there were true judicial restraint and true originalism, the high court would not be permitted to legislate.
And I don’t know precisely how we can put the genie back in the bottle. But how about term limits for Supreme Court justices and Congresses that insist upon reclaiming the power to legislate?
Those things will not happen soon.
Where the monster came from
But I can tell you how we got here. The high court legislated because
Congress would not. Congress was slow on civil rights. It dithered on abortion. (That may change soon.) And the country and the press wanted a quick and clear outcome on the Bush-Gore presidential race.
We wanted activism.
But there is absolutely nothing in the Constitution that gives the Supreme Court the right to decide a presidential election. Just as there is nothing in it that sets presidents above the law.
The Constitution is straightforward. It is not written in sanskrit. Does the president have the right to assassinate an enemy of the state? He does not.
President Eisenhower did not have the right to authorize a coup in Iran, resulting in the assassination of an elected leader. President Kennedy did not have the right to order a coup in Vietnam or attempt one in Cuba. Nothing in the Constitution gave Barack Obama the authority to order the execution of Osama Bin Laden.
Presidents break the law because we allow them to do so. That does not give them authority to break the law. Supreme Courts create wild new laws because
we allow it. They have no constitutional authority to do so.
We need jurists, not regents
When we let our public servants behave as regents, they start to think of themselves that way — different from the rest of us; infinitely smarter; and wholly justified in arrogating power to themselves.
Back to my juror experience: The trial judge was at pains to explain our juridical role: We must not, she said, choose a side; attempt to fix the mess; or appoint ourselves the abitors of good and right. We were told to follow the law and put our personal sympathies aside.
We need juridical citizens, God knows — people who can put bias aside for the good of the country. But, at the very least, we need juridical jurists. Otherwise, we should not be shocked if an imperial Supreme Court endorses an imperial presidency.