America's Culture War and the Supreme Court

He perceptively points out that at the roots of most of the problems, there is at least one, but often several Supreme Court decisions that flout the rules of common sense and often turn our hallowed document on its head. He concludes that the Court, instead of being the final enforcer of the laws and the Constitution, has become a superlegislature that is not responsible to anyone on this earth, not to Congress, not to the President, and least of all to the people.

Few people realize how the Supreme Court reaches a decision that affects all of us, and eventually becomes the “law of the land.”  Once the justices have decided (by four votes) to take a case, first they conduct hearings and take a vote. After the vote where a five-justice majority decides the outcome, they assign one justice to justify why the majority voted the way they did. Usually, first they look at the Constitution, to see if they can stretch some language to justify their vote. If they cannot, they look to precedent, English common law, other legal systems, international law, popular customs or traditions — whatever seems a believable argument. Actually, usually they don’t even do it themselves. That is what law clerks are for! Recently they decided an American constitutional issue based on foreign law. This is pure and simple judicial law-making.

The conflict that Spence calls “culture war” takes place in our courts, and ultimately in our Supreme Court, instead of in the elective branch, where the elected majorities could decide issues based on how the actual outcome of the laws they pass affects the electorate. Also, while laws passed by elected legislatures can be changed after an election by a new majority, “laws” created by judicial fiat become “super-laws,” that can be overturned only by a constitutional amendment —something that hasn't happened yet, although there were attempts to overturn the abortion decision. Getting the Court to overturn its own decision is almost as rare as a constitutional amendment.

As the result of judicial law-making, we can add a new problem to the symptoms discussed in Spence's book, one that makes the book and its concluding proposal especially timely. Simple math shows what is the problem. Acting as a superlegislative body, the Court needs five of the nine votes. This means one justice controls 20 percent of the legislative power of the Court. In Congress, on issues decided by a simple majority, one needs 10 Senate votes to have the same power. Plus, of course, one also needs 20 percent of half plus one votes in the House of Representatives, that is, over 40 House votes. Each Supreme Court appointment represents this much legislative power! Is it any wonder that ideology-driven politics places that much value to Supreme Court appointments?

Let us now take a look at the current Supreme Court vacancy. Justice O’Connor's announced resignation is creating a vacancy that President Bush has to fill. He nominated his longtime associate and lawyer, Ms. Harriet Miers, as the “best qualified” candidate. The nomination has been attacked from both right and left, with critics claiming that  Ms. Miers is hardly the best qualified — there must be several better qualified judges in the federal or state judicial systems. It does not take an Einstein, or a constitutional law expert, to see that the criticism is justified. So it seems the White House leaked some information that several better qualified individuals had been approached and refused the nomination, because they do not want to be borked. A seat on the Supreme Court is not worth the pain and humiliation that a well qualified candidate would have to go through at the hands of liberals such as New York’s Senator Chuck Schumer.

In fact, Ms. Miers is doing a great service to her president and the country by her willingness to go through this humiliating process, made so only because each Supreme Court appointment represents so much power! She is a sacrificial lamb, and if she is borked, or her nomination is withdrawn, the quality of the candidates willing to go through this meat grinder called the confirmation process will only go downward. Ultimately the president may have to put ads in the classified section of the New York Times or the Washington Post, looking for masochistic candidates willing to go through sub-human humiliation to be a Supreme Court justice.

The only solution is what Mr. Spence recommends: Turn the Court back into a normal court of law that decides cases based on existing law, instead of making up the law based on ideological preferences. This is not a new idea, of course, but there has never been so much urgency to do something.

In the 1970s there was a proposal to create a separate “Constitutional Court” with strict rules of interpretation, a court that would include both federal and state judges, but the situation did not reach the crisis state that it has now. The proposal had the special attraction of proposing a return to the original concept of the United States Constitution: namely, that the Constitution was a contract between the sovereign states and the national government, a contract that could be altered only by mutual consent. This was the basic idea of federalism.

Currently Rep. Tom Feeney (R-Fla.), along with Rep. Bob Goodlatte (R-Va.), has introduced the "Reaffirmation of American Independence Resolution" (H. Res. 97), which would prohibit using foreign law as justification of decisions that are supposed to be based on our Constitution. But it is doubtful that a House Resolution would remedy the situation and strip from the Court its superlegislative role.

But the Spence proposal not only goes further, it takes the form of a constitutional amendment, with some real teeth in it. If the justices continued to behave as if they were a law unto themselves, they could and should be impeached!

The situation cannot be allowed to further deteriorate. We have reached a point that is governed by what we may call “Balogh’s Law” or “the Schumer Effect”: The more powerful the Supreme Court is, the more vicious the attacks on judicial nominees will be, thus making well-qualified people less and less willing to accept the nomination. Will the quality of nominees go down until we have a bunch of incompetent masochist party hacks on the high court?

Dr. Balogh is listed on PolicyExperts.org, a product of The Heritage Foundation.