‘Who Do We Think We Are?’ SCOTUS, Bird Cages, & ‘Once Upon a Time’

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Once upon a time, making law was the purview of legislatures. Once upon a time, interpretivism and original intent were the watch words for our judiciary. Once upon a time, courts operated under the quaint old notion that their role was to interpret the law, not make it. Once upon a time, the Constitution meant something. People actually read it. Studied it. Used it for something other than lining the bottom of a bird cage.

No more.

Legislating from the bench again big-time, the U.S. Supreme Court jumped the tracks so far with Friday’s ruling that the train may never regain the rails.

Whether you agree with the high court’s landmark ruling or not, a third grader could tell you we’re in deep kimshi. Why? Because America is pretty much under the thumb of five unelected Supreme Court justices who cannot be recalled or voted out. They are lifetime appointments. They are not representatives. They are not accountable to We The People. Turning the separation of powers on its head, the justices now make law – and they don’t answer to you or me.

If that doesn’t make your constitutional republic blood run cold, I don’t know what will.

While I completely disagree with Chief Justice John Roberts’ tortured logic in the King v. Burwell decision handed down on Thursday, he was spot-on in his withering dissent in Friday’s Obergefell vs. Hodges decision. Noting that it has no constitutional basis, Roberts wrote:

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. Just who do we think we are?” (Emphasis added.)

Good question. The short answer: tyrants in black robes. Roberts continues (This is key):

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

Public domain
Public domain

Roberts argues that the Constitution is not only clear on the matter, but he also writes that “This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning.”

Harkening back to the founding fathers, – another quaint “once upon a time” – Roberts declares:

“Those who founded our country would not recognize the majority’s conception of the judicial role … They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”

In other words: The manner in which five justices arrived at their decision should give you serious cause for pause. (This is one reason why the libertarian laissez faire attitude on this issue was, and is, an epic non-sequitur.) NFL star Benjamin Watson’s June 28 Facebook post on the question, however, is eloquent and elegant. Read about it here.

Additionally, Joseph Backholm, Executive Director of the Family Policy Institute of Washington, had this to say about Friday’s ruling and its potential repercussions. Used by permission.

“The freedom to democratically address the most pressing social issues of the day is the heart of liberty. Today, the Court stripped the people of that freedom. Government should not impose their beliefs on the people.

“Democracy matters and the vote of the people matters. The Court overrode the will of tens of millions of Americans in 31 states who successfully voted to preserve the millennia-old definition of marriage.”

Backholm also expressed concern about how this issue will affect religious liberty in America:

 “People of faith should be able to live out their beliefs in the public square without being silenced to the four walls of their homes and churches. This decision poses a tremendous threat to religious liberties and will have future ramifications on schools, churches, non-profits, and private businesses.”

Backholm concluded:

“Today’s decision offers an opportunity to work together to advocate for strong marriage policy in the states and to ensure that the Government never penalizes a citizen or an institution who believes that marriage is the union between one man and one woman.”

Not to point out the obvious or anything here, but a bird cage has bars.

Who do they think they are, indeed?


H/T: Business Insider, Joseph Backholm