Courtroom activism opens whole new world

It’s been a roller-coaster week for Supreme Court watchers everywhere.

For those favoring the legitimization of Obamacare and gay marriage, the court delivered a political boost well reflected in the subject line of one particular e-mail that arrived in our in-box Friday morning, trumpeting “We Won!”

Yes, it was a historic day for America on Friday, following the announcement earlier in the week of the Court’s decision to uphold the constitutionality of Obamacare.

But there’s more. Whatever one thinks of government-run healthcare, of homosexuality, of the institution of marriage, there’s a bigger question looming here and it’s the one that really troubles us: If this kind of revolutionary judicial process can happen now, what’s next?

For a long time, conservatives have complained about the activism of members of our U.S. Supreme Court.

Those who remember civics class may recall that the Supreme Court was established by our nation’s founders as the final opportunity for legal appeal and as interpreter of federal constitutional law for our nation.

Our system of government was set up by people who had wisdom born from difficult experience. They knew what tyranny was, first-hand, and they formulated a system of government, consisting of three branches (executive, legislative and judicial) designed to ensure that no individual or group gains too much control, thus defending against despotism.

Over the 240 years since the birth of our nation, a lot has changed. Americans have changed. And so have our courts.

The Supreme Court has, particularly in the last 50 years, begun to make rulings that moved away from legal traditions of the past, which maintained that it was not the role of judges essentially to make new laws – that was for legislators – but rather to review them in the context of the U.S. Constitution, with a significant regard for precedent.

Activist judges, who hand down rulings suspected of being based on personal or political considerations rather than on existing law, have changed the landscape of U.S. politics.

As one observer put it last week, these justices see themselves as “super-legislators.” Our political world has developed to the point where they can legitimize actions that, not long ago, would be widely considered judicial over-reach and might have prompted impeachment proceedings. Things have changed.

It is necessary for us to note here that accusations of judicial activism are not confined to liberal judges. Justice Samuel Alito, a member of the minority in the most recent cases, for instance, has been accused of ignoring clear indications of what writers of laws intended in ruling on those laws. Of course, that is also exactly what critics say Chief Justice John Roberts and the majority did in the Obamacare case – interpreted Congress’s language the way they wanted to.

One way of putting this is the old proverb: “The end doesn’t justify the means” – especially here.

We’re not alone in feeling friction. The five-justice majority in the gay marriage case drew sharp concern from the four who didn’t buy the argument that this “right” of marriage for two people who can never procreate is one based solidly in the U.S. Constitution.

“[D]o not celebrate the Constitution. It had nothing to do with it,” wrote Roberts, who was in the minority on this one.

We don’t think we’re overstating things when we say that the United States is at a crucial juncture. Supporters and opponents of some of the initiatives legitimized by the Court last week will agree on one thing: The arrival of these social changes has happened a lot faster than most of us dreamed they would. This is revolutionary stuff. We are talking about major, fundamental changes here to the way not only we Americans have thought for the last three centuries, but to values held by our ancestors for millennia – right up to the last couple of generations, or less.

So are dissenting justices and the rest of us who are seeing red flags here simply a bunch of sourpuss prophets of doom? Do we really have to bring this up now, amid all the joy these rulings have brought?

Yes, because the very fabric of our nation is imbedded in maintaining the balance of power between the branches of our government. These shifts of power, unchecked, will come back to bite us all.

Thomas Jefferson, writer of our Declaration of Independence, once said: “Experience (has) shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

Too much unregulated power is a danger to us all – conservatives, liberals, moderates – wherever we fit in the political spectrum.

It’s time for all of us – right here in Sweet Home, as well as across America, to pay attention. If Americans let these issues slide, the problem won’t be a cadre of activists and their judicial sympathizers. The problem is us.

To quote another Founding Father, Benjamin Franklin: “It is in the religion of ignorance that tyranny begins.”

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