The Supreme Court began its October session last week. Oral arguments on important issues will be heard. Opinions won’t be released until June. There will be lots of speculation in between now and then. It might as well start here. Several cases concerning state law will be heard. That’s the common thread.
Whether a state may ban same-sex marriage, who gets to re-map voting districts and for what reasons, and matters relating to the implementation of federally mandated health care laws were among the cases.
These are cases they chose to hear. Many people don’t realize this, but the U.S. Supreme Court actually chooses what cases it reviews. The Constitution defines the cases the court must hear. Otherwise, they get to pick. It’s called “granting certiorari.” The “rule of four” is a long-held tradition, an unwritten rule, wherein the court hears any case that four justices deem ripe for review. It seems that superceding state law with federal authority is on the minds of at least four justices.
Supreme Court opinions are legal precedents that every lower court must follow in the federal and state systems. The primary job of the Supreme Court is to be the final arbiter deciding whether existing legislation comports with the Constitution. OK, so far. Since the court gets to pick and choose what cases it hears, it gives rise to the practice that these selections are mere vehicles wherein the court establishes a legal precedent they already have in mind. It is implementation of ideology. This is what many call “legislating from the bench.” Judge-made law.
This isn’t like the check and balance, three-branch government ideal taught in civics classes. It is raw power that circumvents representative government, and Congress is complicit.
Consider this: same-sex marriage is a controversial issue with lots of legal variation among the states. Either way a Congress member votes on this issue, some constituents are going to be angry, and there’s always an election coming up.
Solution? Let the courts handle it, then complain to all the voters about how lifetime appointed federal judges unconstitutionally legislate from the bench. This process can be repeated as necessary whenever controversial issues arise. War is usually controversial.
It’s supposed to be the job of Congress to declare war. Now there’s a politically hot potato. In the days following the 9/11 attacks, Congress enacted the “Authorization to Use Military Force” resolution. It empowered the executive branch to use the U.S. to fight terrorism whenever and wherever necessary at the discretion of the executive branch. Presidents were not intended to have such authority.
So, what was cited in the Constitution as a legislative function has now been delegated to the president. Maybe the Supreme Court should review the Authorization to Use Military Force resolution to determine its constitutionality. Maybe a majority of them would actually rule in favor of the constitution they swore to uphold. Maybe not.
A few years ago the Supreme Court justices did a lot to fill campaign war chests. By removing legislation that limited the extent corporations could finance elections, the relationship between representative and constituent is further marginalized. Big money pays for silly commercials that tell us why we shouldn’t vote for a particular candidate, and we don’t.
Only 60 percent of Americans turn out for presidential elections and only about 40 percent turn out for midterm elections. Choosing the lesser of two evils is still choosing evil. Dang it!
With this season’s docket, more is at stake than the actual issues involved. All of the cases implicate the Supremacy Clause. That is, when federal and state laws conflict, federal law wins out. Too bad, so sad for the 10th Amendment.
You know the one that reserves to the states the police powers necessary to enforce state laws regarding the health, safety, welfare and morals of its communities? It’s not talked about much anymore, but is still right there in the constitution.
State legislatures become hand-tied. All those states legalizing marijuana will be finding that out, eventually. Those states that border Mexico have found it out already. Apparently, they are not allowed to protect their borders even when the federal government won’t. Supremacy Clause again.
During weeks that the Supreme Court hears oral arguments the audio recordings are posted to its website (SupremeCourt.gov) on Fridays. It’s something to check out if “C-Span” gets too boring. Hard to imagine, though, considering that they now have three channels, a radio service and a Twitter account.
Meanwhile, history will be made in the chambers of the U.S. Supreme Court. The future of our society will be shaped. Agendas will be advanced. There will be winners and losers beyond the actual litigants.
We will be among them.
Column by Kevin Qualls, Professor of mass communications