In the eyes of most Americans, the U.S. Supreme Court is the final say about our rule of law. Along with that presumption is that they never make mistakes. I always questioned that, as I do anyone who says they have the final say. Somehow the fact that nine political appointees with lifetime appointments, thus no accountability, can decide the fates of 330 million people is distasteful to me.
A basic understanding of the Constitution says that the judicial system is one of three branches of government, the other two being the Executive and the Legislative. Sadly, over time the distinction between them has blurred. President Obama has used the Executive Branch for legislative purposes and then somehow obtained the support of the Judicial Branch in that quest.
The Supreme Court is the head of, but not the entire, Judicial Branch. It is also a system of federal district courts and appeals courts. Believe me, judicial activism is alive and well in the federal court system. Just look at the Ninth District Court in San Francisco. It never met a government regulation or control it didn’t like.
One thing to remember about the Supreme Court is that justices can influence policy and law as easily by the cases they choose not to hear as by those that they do hear. Keep that in mind when you read that the Supreme Court declined to hear a particular case. Think about the implications of that inaction.
In their defense, the cases they do agree to hear are usually fraught with thorny issues and take a lot of time to deliberate. They only have so much time. That is why it is important to have an Executive Branch that eschews political activism in its appointments to Federal courts.
The other thing I will state is that the information herein is viewed from a layman’s standpoint. There may be legal points in the cases that in practice actually change or counter the public perception of the decision. That said, public opinion plays a huge role in the effect of a case on public policy.
There is no greater example of this than Roe v. Wade in 1973. This case determined the right of a woman to choose an abortion. It was a poor decision because by most standards the legal reasoning was so thin that in an Appeals Court the decision would have been overturned. It is as though the court has a predetermined conclusion. Nonetheless, Roe v. Wade has allowed groups like Planned Parenthood to prosper and caused great joy from liberals. As an aside, nothing in Roe v. Wade called for government funding of abortion.
Dred Scott v. Sandford, 1857. This infamous case declared by 6-3 decision that black people were inferior to whites, couldn’t be U.S. citizens, and were property of their owners. Essentially, the decision said slavery was legal. It took the only civil war on U.S. soil and the 14th Amendment to fix this one.
Korematsu v. U.S. In 1944, this decision confirmed that the mass rounding up and incarceration of Japanese-Americans was legal. The crux of this case was that the risk of spying from Japanese citizens (national security) was more important than the rights of the individual. This decision has never been overturned. Who might be next? Tea Partiers? Libertarians? Just asking.
Oregon v. Mitchell, 1970. Determined that Oregon had the right to establish voting age as 21 for its elections. This created problems since the legal age for federal elections was 18. The final solution to this was the 26th Amendment.
National Federation of Independent Business v. Sebelius. You should be familiar with this one, if not by name. In 2012 the Supreme Court by a 5-4 vote determined that the Affordable Care Act was constitutional. Never mind that the decision flew in the face of numerous prior Supreme Court decisions affirming free trade. This one may just replace Dred Scott as the most infamous decision of all.
The Supreme Court has made numerous good and reasoned rulings. However, they do make mistakes. These are a few of their several poor ones. If you look at the timeline of these decisions, they tend to be based more and more on past court decisions than Constitutional provisions. They screw up once, and then build upon it. And that is wrong. That is why this election if so important, with at least two and maybe three Supreme Court appointments probable. Remember, no vote is a Hillary vote.
Tom Riggins’ column appears every other Friday. He may be reached at news@lahontanvalleynews.com.