The Supreme Court of the United States is a vital part of the system of checks and balances that the Founding Fathers of America put in place to keep our Republic free. By dividing the Federal Government into the Legislative Branch, the Executive Branch and the Judicial Branch, the founders prevented any one branch of the government from becoming too powerful. Each branch was intended to be separate yet equal and each had specific responsibilities in the functioning of our Republic. The role of each branch and the powers entrusted to each of them was defined in the Constitution.
The Judicial Branch, of which the Supreme Court of the United States is the highest authority, is a multi-tiered Federal Court system consisting of Trial Level Courts, Appeals Courts and the Supreme Court. The Judiciary determines which laws Congress intended to apply to any given case, exercises Judicial review by ruling on the Constitutionality of laws, determines how Congress meant the law to apply to disputes and determines how laws should be interpreted to assure uniform policies.
The Supreme Court consists of nine Justices: eight Associate Justices and one Chief Justice. They are nominated by the President, approved by the Senate and serve for life. Decisions by the Supreme Court can set a legal precedent and no other court can overturn a decision by the Supreme Court. Despite recent trends by advocates of Judicial activism towards the consideration of International Law, the Supreme Court Justices are bound by Oath to follow the Constitution of the United States and to consider no law but that of the United States in their decisions.
According to time honored principals and legal standards, a Supreme Court Justice is supposed to be a Constitutional Scholar and an expert in Federal Law, who will impartially apply the original intent of the Constitution to their rulings. A Justice can not allow any political affiliations or party loyalties to cloud or influence their rulings and they are required to recuse themselves from any case in which there is a conflict of interest. A conflict of interest can be defined in several ways. The judge is related to a party, attorney, or spouse of either party within three degrees of kinship. The judge is a material witness. The judge has previously acted in the case as an attorney for a party, or participated in some other capacity. An Appellate judge previously handled case as a trial judge. The judge has personal or financial interest in the outcome. The judge determines he or she cannot act impartially. The concept of recusal is an important component of Judicial fairness and several Supreme Court Justices have been forced to resign over the years due violations of the rules concerning conflict of interest.
In recent years, many of the leaders of the Liberal and Progressive movements have begun to call the Constitution obsolete. Instead of the traditional view that the Constitution is a timeless document and should be interpreted as it was originally written, many on the Left have begun to advocate for a “living” constitution that evolves and changes as society evolves and changes. This has led to an increasingly strident dispute between the traditionalists and the modernists. The disagreement was mainly academic until the Clinton Presidency. Because the appointment of Liberal Justices Ruth Bader Ginsburg and Stephen Breyer took place during Clinton’s first term, many traditionalists consider Clinton to be one of the founding fathers of modern Judicial activism. Others, who are perhaps more cynical, are of the opinion that Clinton was more interested in appointing Justices who would rubber stamp his policies then he was in changing the way we interpret at the Constitution.
One clear example of the attitude of Judicial activists was reflected in Ruth Bader Ginsburg’s comments before an audience at the American Society of International Law in April, 2005, when she said, “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification.” Justice Ginsburg went on to further infuriate Conservatives and traditionalists when she spoke to a group of Egyptians, who were involved in writing a new Constitution for Egypt, after the overthrow of Mubarak. To her Egyptian audience, she commented, “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” Her comments outraged many in the United States, who were appalled that someone who was sworn to uphold the Constitution, would treat it with such a lack of regard or respect.
The conflict over the Court reached even greater heights of disagreement when President Obama continued the Clinton policy of appointing reputed activist judges. Obama nominated two well known, Liberal legal figures, Sonia Sotomayor and Elena Kagan, to the Supreme Court. Controversy surrounded both appointments, beginning with Sotomayor’s nomination in 2009. Sotomayor was taken to task for a comment she made during a speech she gave in 2001, when she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Then in 2010, Obama nominated Elena Kagan to fill the vacancy created by the retirement of Justice Stevens. During her tenure as the Dean of Harvard Law School, prior to her joining the Obama Administration as Solicitor General, Kagan rankled feathers among Conservatives by trying to ban Military recruiters from the Harvard Campus over the Military’s “Don’t Ask, Don’t Tell” policy. When the Supreme Court ruled in favor of the Military, Kagan urged students and professors to protest the recruiters return to the University Campus. With her actions at Harvard and her strong support of the Affordable Care Act (ObamaCare) as Solicitor General, Kagan has been labeled as an ultra Liberal, judicial activist.
All of the controversy and confusion about the Supreme Court came to a head with two recent cases that upset and divided Americans. The first and most prominent of these cases was the lawsuit to overturn the Affordable Care Act. The Court held 3 days of hearings on March 26, 27 and 28, 2012 on the constitutionality of ObamaCare. The Court appears to be split down Party lines, with Conservative Justices in favor of ruling the Affordable Care Act unconstitutional and Liberal Justices strongly in support of the Affordable Care Act. This case, which many feel is one of the most important cases ever argued before the Supreme Court, was made even more acrimonious over the refusal of Justice Kagan to recuse herself. As Solicitor General, she helped craft the Obama Administration’s defense of the law and critics of Kagan’s Liberal Judicial philosophy felt there was an overwhelming conflict of interest. Conservatives were so incensed by her refusal to recuse herself that they have been calling loudly for Kagan’s impeachment. As usual, the Liberal Mainstream Media hardly mentioned the dispute and strangely, neither did the Republican Party, who once again chose not to rock the boat.
To make the situation even more volatile, Obama chose to outrage many supporters of our Constitutional system of government by openly attacking the Supreme Court, just days after the hearings. To quote Stephen B. Presser, Professor of Legal History at Northwestern University School of Law, “In what must be the most extraordinary statement of his presidency, Barack Obama on Monday blasted the possibility that the United States Supreme Court might overturn the Affordable Care Act. Obama said the court would take an “unprecedented, extraordinary step” if it overturns the law, because it was passed by “a strong majority of a democratically elected Congress.”" Obama’s protests that the law had a strong majority were simply untrue. ObamaCare was passed by a straight party line vote, with all Republicans voting against it. The Affordable Care Act barely passed by 7 votes in the House and only got through the Senate by using a parliamentary procedure called Reconciliation. It was the first time in U.S. history that Reconciliation was ever used to pass a major spending bill. Constitutional scholars were horrified that a bill that will take control of almost 20% of the U.S. Economy was passed using a Parliamentary maneuver that had always been reserved for passing minor bills.
Compounding the falsehood of Obama’s claims of overwhelming support for ObamaCare, is his incredible lack of understanding of how the Constitution works and how our system of checks and balances works. The fact that Obama is supposed to be a Constitutional Scholar makes his outburst all the more unseemly. The Supreme Court has ruled over 50 laws unconstitutional during its history. As Professor Presser stated, “Since 1788, in the famous defense of the Constitution set forth by Alexander Hamilton in the Federalist Papers, it has been understood that it is the task of the Supreme Court to rein in majoritarian Legislatures when they go beyond what the Constitution permits…. Judicial review is not usurpation; it is the manner in which the rule of law is preserved in this Nation.”
On Monday, April 2, 2012, the Constitution of the United States suffered further damage due to a positively scary ruling from the Supreme Court in the case of Florence v. Board of Chosen Freeholders of the County of Burlington. The Court ruled that guards may routinely strip search prisoners, even minor traffic offenders or people who violate leash laws, when they are arrested and detained. The strip search may include requiring the prisoner to lift or spread their genitals. The guards can order the prisoner to spread their buttocks and expose their anus. They can order the prisoner to squat and cough to see if any hidden objects fall out of a vaginal or anal cavity. Once a prisoner is placed in the general population of a jail or prison, even if the prisoner has not even appeared in Court, they lose their right to protection under the Fourth Amendment. The Court ruled there was no need for probable cause and that prison safety trumped personal privacy, even in the complete absence of probable cause. Under this ruling, someone who has merely been detained has no more rights under the Fourth Amendment than a mass murderer serving life in prison.
Here is the text of the Fourth Amendment contained in the Bill Of Rights. “The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.” This is a wonderful example of the genius of the Constitution, when understood as written, without trying to turn it into a “living document.” What is there in these simple words that a Supreme Court Justice does not understand? Under our Constitution, there must be probable cause to search a person. It is simple. elegant and so straight forward an 8 year old can understand it. Sadly, five justices on the Supreme Court cant understand it as written and they expect 300 million Americans to put their trust in the good will of overworked, underpaid prison officials instead of in the Bill Of Rights. April 2, 2012 was a very bad day for freedom in America.
We can see the greatness of our Founder’s thinking; the beauty and brilliance of our system of checks and balances. The Constitution is still as relevant and valid as the day it was written. It is time for Presidents, politicians, judges, professors and pundits to stop trying to fix what isn’t broken. We don’t need to rewrite the Constitution but many of our so called leaders need to RE-READ the Constitution. There is no need to supplement the Constitution with International law or Sharia or Talmudic law. Our country was built on a unique faith in the value of our own laws. If we follow the Constitution the way it is written, our freedom will be preserved. American exceptionalism is real and it shines out brightest when we follow the laws our Founding fathers set down for us in the Constitution of the United States of America.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Conflict, Manipulation And Fear – Politics In The Modern World is a Weekly Column by Wolff Bachner about Government, Leadership and the Pursuit of Power