Legislating from the Bench

The US Supreme Court is hearing arguments this week on two cases concerning same-sex marriage.  The first case, Hollingsworth v. Perry, is an appeal of a lower court ruling that determined California’s law banning same-sex marriage, known as Proposition 8, unconstitutional.  The second case, US v. Windsor, is an appeal of a lower court ruling that determined part of the Defense of Marriage Act (DOMA) is unconstitutional.  It seems every media outlet is covering the story and many are hoping the Court will address the legitimacy of same-sex marriage.  I hope the Court will do what our founding fathers intended them to do, uphold the Constitution and preserve the rule of law.   So whose responsibility is it?

The US Constitution does not give Congress the power to pass laws that define marriage.  That power is reserved, by the 10^th Amendment, to the states.  Therefore, Congress does not have the authority to pass DOMA.  The Court should not rule whether the language in the law is constitutional or not, since the Court does not have the power to enact such law. This may seem like a minor distinction, but it’s an important one; the Court should only rule on the constitutionality of Congressional actions, to rule on the constitutionality of the language goes beyond preserving the rule of law and delves into setting national policy.  That’s not what the Supreme Court is supposed to do, but when it does, it often causes damage that is difficult to reverse.

In 1857, the US Supreme Court ruled in Dredd Scott v. Sandford that “Persons of African descent cannot be, nor were ever intended to be, citizens under the U.S. Constitution.”  Chief Justice Taney based his argument on statements from one of the signers of the Constitution, not the words of the Constitution.  Furthermore, he ruled that Congress did not have the power to prohibit slavery in US territories, although Article IV of the US Constitution provides Congress with the authority to “make all needful Rules and Regulations.”

In Plessy v. Ferguson, the Court ruled that racial segregation (“separate but equal”) was constitutional.  In Korematsu v. United States, the Court ruled that sending US citizens of Japanese descent to internment camps during World War II was constitutional.  That is, the US government could deprive US citizens of life, liberty, or property without due process based on their race or ancestry.

I want the Court to preserve the rule of law and uphold the Constitution in this case, but I’m afraid that some of the justices will rule beyond their authority.  That’s because many of our federal judges have been appointed to the bench based, not on their legal expertise or willingness to follow the law, but on their political ideology.

Former Senate Judiciary Chairman Charles Schumer, in a 2001 New York Times op-ed piece, declared that senators should approve or reject a federal court nominee “depending on three factors: the extent to which the president himself makes his initial selections on the basis of a particular ideology, the composition of the courts at the time of the nomination and the political climate of the day.”  Joseph Califano, Jr., an important figure in Democratic Party, stated in an August 2001 Washington Post op-ed piece entitled “Yes, Litmus-Test Judges”, that the Senate, when confirming a court nominee, should “take enough time to give these men and women the kind of searching review that their sweeping power to make national policies deserves”.

Judges should not make policy.  Yet, Supreme Court Justice Sotomayor made comments, prior to her appointment to the Court, about how her sex and ethnicity shaped her judicial decisions and that a “court of appeals is where policy is made.”  Justice Kagan, prior to her appointment, wrote that the Supreme Court should examine governmental motives when deciding First Amendment cases. 

With the federal government willing to ignore the US Constitution more and more, we need federal court judges that abide by the Constitution and preserve the rule of law.  How do we ensure that?  Mark Levin, in his book Men in Black, provides several ideas.  Among these are term limits or a reconfirmation process.  Congress can implement a term limit or reconfirmation process by changing the law found in Title 28 of the US Code.  Second, we can contact our Senators and let them know that we want them to confirm judges, not policy makers.

The US Constitution put forth a system of checks and balances to keep any one branch of government from becoming too powerful.  Presidents, by appointing judges based on ideology, and the Senate, by confirming those same appointees, has not kept the Court in check.  They have, in effect, established a panel of policy makers who govern without the consent of the governed.