Judicial Politics


In my book, America Unraveling: A Politically Incorrect Analysis of Public Faith and Culture, I described this nation as leaning toward a “krytocracy,” or governance by and through judges. I emphasized that Supreme Court justices “seem more than happy to hand down their political and philosophical pontifications as the law of the land. . . .”  I suggested that this “exclusive” and “elitist” judicial body be re-named the “Supreme Court of Cultural Fashion.”  I further stated, again cynically I admit, that the justices’ “educational qualifications for the job boil down to nothing more impressive than how committed they once were to memorizing course outlines in contracts, torts, and property.”  Some characterized my words as intemperate and irreverent, but I stood by them then and do so now. 

The recent case of Windsor v. United States, in which the Court struck down Section 3 of the Defense of Marriage Act (DOMA), reinforces my point.  The Court’s majority was led by Justice Anthony Kennedy, who also, if you will remember, authored the majority opinion in Lawrence v. Texas, which outlawed America’s anti-sodomy statutes and served to legalize homosexual sexual relations throughout every state and territory of the United States. 

Section 3 of DOMA provided that throughout all bureaus and agencies of the federal government the word “marriage” should be interpreted as a legal union between one man and one woman and the term “spouse” as a person of the opposite sex who is either husband or wife.  These legal definitions were approved by both houses of Congress and signed into law by President Bill Clinton.  So what, you may ask, is outrageous or offensive about this statute?  In a nutshell, Justice Kennedy, joined by Justices Breyer, Ginsberg, Sotomayor, and Kagan, insists that it “singles out a subset of state-sanctioned marriages and makes them unequal.” 

States like New York may have their own definition of these words, but why should their definition be accepted over that of Congress? Any expansion of the meanings of these terms from their traditional meaning is not the prerogative of the Court. What we are concerned about here is social policy.  The formulation of that policy belongs to the people's elected representatives, not to Justice Kennedy and his colleagues who own appointments for life. What are the limits of their concept of equality?  Without defining those limits, there is a doubt about whether the Court's egalitarian impulses are principled.

It has likewise been my understanding for the longest time that, when there is a conflict between federal and state law, the former trumps the latter.  Article VI, Section 2 of the Constitution states:  “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the Land. . . .” (emphasis added)  Since when did the four secular-progressive justices who joined Justice Kennedy in this opinion become states’ rights advocates?  I find their newfound deference to state law more than a bit puzzling. 

This is particularly true in light of another same-sex case, Perry v. Hollingsworth, decided by the Court on the same day as Windsor.  The people of California voted in 2008 to approve Proposition 8, which banned same-sex marriage. The California Supreme Court upheld the Proposition in 2009. Then the complainants brought suit in federal court, and United States District Court Judge Vaughn Walker, an active homosexual himself, became involved in the case, ruling that there was no rational basis on which to refuse marriage licenses to same-sex couples. (“Rational basis,” interestingly enough, has not been a  difficult burden for a state to shoulder as this is the least arduous of all standards of judicial scrutiny.) 

State Attorney General Jerry Brown, however, refused to defend Proposition 8; so its proponents had no choice but to do so themselves, and therefore appealed the district court decision to the Ninth Circuit Court of Appeals.  Without surprise, the decision was affirmed by this court since it is the most secular-progressive court in the nation.

The Supreme Court of the United States granted writ of certiorari to hear the case, and upheld the district court’s decision on the ground that the proponents of the proposition were without sufficient standing to bring the case.  

This simply does not pass the smell test.  It is indeed irregular when a state’s attorney general refuses to defend its laws which are duly and rightfully enacted.  I was under the impression, apparently false, that it is the sworn duty of state officials to defend the laws of the people or that they, when unable or unwilling to do so, resign.  I was also under the impression, again apparently false, that this practice constitutes the essence of republican government.  Finally, it was my enfeebled understanding, misguided as it was, that it is incumbent upon the United States to guarantee to every state of the Union a “republican form of government.”  (Constitution, Art. 4, Sec. 4)  I cannot comprehend how the United States can satisfy this guarantee to the people of California when the laws enacted by them are flagrantly undermined and not enforced by their elected officials, in this case Mr. Brown.  Of course, the overarching point here is not about "Governor Moonbeam," but about the United States Supreme Court, which is willing to overlook his contemptible nonfeasance in Perry, while it poses as the great protector of state freedom in Windsor.

Am I the only one who smells a rat in this mess? The highest tribunal of the land is obviously promoting a political agenda favoring homosexual interests.  The Court has taken upon itself the task of transforming traditional American culture in a way that the justices find appropriate.  Yet where is such a power granted to them in any of America’s founding documents?  Alexander Hamilton, in Federalist 78, described the federal judiciary as “the weakest of the three departments of power."  He may have envsioned the judiciary in that manner, but it has not turned out that way.  To the contrary, it might reasonably be argued that the judiciary is now the strongest and most powerful branch of government.  This power has not been bestowed, but taken or, better yet, “grabbed.”  The Court has studiously fostered the impression of objectivity, even-handedness, rigorous logic and, most of all, scrupulous respect for the Constitution.  Yet I have come to believe that this is a contrived and disingenuous mask behind which it strives to work its political will. 

If the American people were vigilant instead of asleep, such a krytocracy could not exist.  The Court would think many times over before engaging in this kind of political sleight of hand.  But the country in which you and I live is composed of thousands upon thousands, even millions, of citizens who give no thought to hard-earned rights or to the culture that gave birth to them.  The typical American is incapable of giving his or her mind to much of anything except his or her next meal, sexual dalliance, and next year’s Super Bowl winner.  For this reason, America is marching inexorably toward authoritarian government, and the Supreme Court’s recent rulings on same-sex marriage showcase this sad truth.

There is, ironically, an element of justice in the nation’s decadence, because it is receiving precisely the kind of government it deserves.

July 8, 2013