The ‘Fairness’ of the U.S. Supreme Court
by FRANK SALVATO
April 27, 2012
In the aftermath of oral arguments in both the Patient Protection & Affordability Care Act and Arizona SB1070 cases at the United States Supreme Court, many in the mainstream media, as well as the many so-called political strategists of the Left, are setting the stage for a political inoculation. Progressive and Democrat pundits and operatives alike are declaring that should Obamacare be rendered impotent, and should the SCOTUS uphold Arizona's immigration and border protection law, it would all be the doing of Right-Wing judicial activism. While this rhetoric may be a winning strategy politically, it is, nonetheless, what Progressives and committed Liberals believe.
The idea that the Supreme Court might be "fair" or "unfair" in establishing the constitutionality or unconstitutionality of any given case is a matter of perception. The frailty of the human ego - along with the pomposity of ignorance and the intellectual limitations of the constitutionally illiterate mind, sadly, facilitate the belief, by some of the more ardently political that should the Supreme Court rule in a way that does not run in lockstep with their political belief system, somehow the ruling is "activist." And while I freely admit that the scourge of judicial activism does indeed exist, at the level of the US Supreme Court the action (or inaction) is quite rare.
Granted, each Supreme Court Justice possesses his or her own political ideology, but such is the nature of deliberative bodies stewarded by human beings. It is for this reason that great care needs to be taken by Presidents in making nominations to the United States Supreme Court. It is for this reason that pure ideologues and special interest operatives should be resolutely rejected from consideration for the bench by the United States Senate and not "rubber-stamped" as giving the President his due. And it is for this reason that both past Presidents and members of the Senate have failed the American people by allowing ideologues and special interest nominees to have reached the bench.
But, it is also the reason why we, as a people, have to eradicate the intellectual diseases known as constitutional illiteracy and political correctness. The combination of these two maladies leads to a society ignorant of the truths of the philosophies used by our Framers to craft the Charters of Freedom. When we, as a people, become blind to the truths about the philosophies used to guard liberty, individual rights and freedoms - and when this ignorance is supercharged by the shadow governance of political correctness - we facilitate a dangerously powerful Progressive Movement, which sees little use in adhering to the limitations of the United States Constitution or honoring the founding tenets of the Declaration of Independence as intended by our Framers; limitations and tenets crafted to preserve the rights of the individual over the tyranny of the State.
Disturbingly, the tentacles of the Progressive Movement - the sharpened talons of a scavenger beast dedicated to centralizing power at the federal level and establishing a Socialist Democracy, run by an elitist oligarchy, where a Constitutional Republic once stood - have reached into every facet of our society. From the education system (which is now completely dedicated to social engineering), to the Justice Department and the many Executive Branch agencies (which, under the Obama Administration are completely dedicated to social justice), to the mainstream media (now completely dedicated to advancing a Progressive agenda), the beast ravages; the beast consumes; the beast destroys.
A perfect example of the indignation held by Progressives for the US Constitution and the rule of law comes in the aforementioned political inoculation by members of the mainstream media in the event of any non-Progressively-compliant ruling by the SCOTUS on Obamacare.
In a Washington Post column titled, Judicial Activists in the Supreme Court, E.J. Dionne writes:
"Three days of Supreme Court arguments over the healthcare law demonstrated for all to see that Conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor & Pensions Committee...
"The Conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others - often taxpayers - have to pay for.
"...This is what Conservative justices will do if they strike down or cripple the healthcare law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology."
Ignore for the moment that Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito weren't even on the bench for Bush v. Gore...
In the Los Angeles Times article titled, Signs of Supreme Court Activism Worry Reagan Administration Lawyers, David G. Savage wrote:
"When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan's solicitor general gave him a warm endorsement as a ‘careful, modest' judge. ‘He's not a man on a mission,' Harvard Law professor Charles Fried testified, adding that Roberts was not likely ‘to embark on constitutional adventures'...
"...last week, the court's Conservatives, including Roberts, suggested they may well strike down President Obama's healthcare law as unconstitutional. If so, it would be the first time since 1936 that the Supreme Court voided a major federal regulatory law.
"After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism."
And New York Magazine's Jonathan Chait, opined in an article titled, The Roots of the Court's Obamacare Panic:
"So why now, all of a sudden, is the Court so seized with the prospect that the government might fall into the hands of maniacs? Jonathan Bernstein has a pithy post noting that this is the triumph a completely ahistorical, TEA Party-driven analysis, which sees the Constitution as having been designed in large part to prevent regulation and the redistribution of wealth. A tiny handful of right-wing scholars have long argued for this, but it's a minority conception. The interesting development is that it has quickly leapt from the fringe into the mainstream of Conservative legal thought. Partially, this reflects simple partisan opportunism - Conservative justices seizing an opportunity to use their power to intervene in a high-profile political battle."
Chait again in a New York Magazine article titled, What to Do If the Court Strikes Down Obamacare:
"A Supreme Court activist enough to strike down Obamacare would probably be activist [enough] to strike down single-payer, too. Whatever arguments the Conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system. This doesn't mean we should give up on ever passing such a law. But it does require a different strategic calculation. Instead of the presidency, a House majority and 60 senators, you probably need the House, the presidency, 50 senators and five Supreme Court justices."
If the last quote scares you, you're not alone...its scares the Hell out of me as well.
In each of these instances the Progressive notion plays out that should the US Supreme Court Justices find that the individual mandate breaches the boundaries of an already bastardized Commerce Clause in that it literally creates commerce to regulate, and that it mandates, in an unprecedented manner, that a US citizen be required to purchase a product - be it from a private sector entity, a public-private partnership or the government itself - in order to not be afoul of the law, it would be an act of judicial activism and not rooted in the US Constitution.
As I stated earlier, this is a matter of perception and, quite frankly, this perception is a byproduct of over 100 years of Progressive activism meant to advance the falsehood that the United States Constitution is a "living document" that is to morph with the needs of the times.
In an April 5, 2012 article titled, Why Progressive Obama Believes He's Correct, I cited an entry at DiscoverTheNetworks.org on Progressivism, and specifically a passage quoting Hillsdale College's R.J. Pestritto:
"The Progressives wanted a thorough transformation in America's principles of government, from a government permanently dedicated to securing individual liberty to one whose ends and scope would change to take on any and all social and economic ills.
"In the Progressive worldview, the proper role of government was not to confine itself to regulating a limited range of human activities as the Founders had stipulated, but rather to inject itself into whatever realms the times seemed to demand...Progressives called for a more activist government whose regulation of people's lives was properly determined not by the outdated words of an anachronistic Constitution, but by whatever the American people seemed to need at any given time.
"This perspective dovetailed with the Progressives' notion of an ‘evolving' or ‘living' government, which, like all living beings, could rightfully be expected to grow and to adapt to changing circumstances. Similarly, Progressives also coined the term ‘living Constitution,' connoting the idea that the US Constitution is a malleable document with no permanent guiding principles - a document that must, of necessity, change with the times."
A cursory understanding of the philosophies and principles embraced by our Framers in the crafting for the Charters of Freedom (The Declaration of Independence, the US Constitution and the Bill of Rights) lays bare the truth that tyranny exists; that a government of men and not of laws leads to the abuse of power. It is because of the reality of these truths that our Framers - in their brilliance and in their thorough understanding of the corruptibility of men - crafted the Constitution as a document limiting the power of government, not a document that, as Progressives insist, "must, of necessity, change with the times."
If the US Supreme Court strikes down the Patient Protection & Affordability Care Act or upholds the Arizona SB1070 law, they would not be acts of judicial activism, they would be acts of constitutionality; acts of constitutionally charged obligation, by the very existence of the Supreme Court's authority under the Constitution. The same must be said in the event that Obamacare is upheld and if Arizona SB1070 is struck down. I say this because this process is a constitutional process; it is the process of the American form of government; it is, as John Adams so rightly declared, the actions of "a government of laws, and not of men."
Understanding that the Progressive Movement is less about "a government of laws" and more about the power-hungry greed of men, Mr, Chait's comments are all the more chilling:
"...Instead of the presidency, a House majority and 60 senators, you probably need the House, the presidency, 50 senators and five Supreme Court justices."
This, my fellow Americans, is why both constitutional literacy and elections matter.
FamilySecurityMatters.org Contributing Editor Frank Salvato is the managing editor for The New Media Journal. He serves at the Executive Director of the Basics Project, a non-profit, non-partisan, 501(C)(3) research and education initiative.