At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Abraham Lincoln, First Inaugural Address
God bless the Federal judiciary! After having such a smashing success in “resolving” the abortion issue by legalizing it, they have “resolved” the gay marriage debate by mandating it. Senator Ted Cruz (R.Tx.) is having none of it:
The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible. By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.
This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.
The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word – an action that is likely to have far-reaching consequences. Because of the Court’s decision today, 11 States will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state.
It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.
Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.
Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.
Traditional marriage is an institution whose integrity and vitality are critical to the health of any society. We should remain faithful to our moral heritage and never hesitate to defend it. →']);" class="more-link">Continue reading
Kevin Williamson says what is obvious to most, but is sadly considered controversial considering the number of comments.
Justice Ginsburg – evidently with a straight face, claims that the Roberts court is the most activist in history. Frankly I think the term is misused, but any way you slice it – No.
It’s been kind of a fun day on social media seeing both the outrage and the non-outrage over Miley Cyrus’s VMA performance. I think I saw more tweets and facebook posts from people saying that they’re not going to comment than from people actually commenting. As I said last night on twitter, I’ve basically become my father when it comes to VMAs. That said, it’s led to some hysterical (not in the ha ha sense) tweets. See the RS McCain link, but also check this out.
As always, the USCCB really has its pulse on the issues that really merit out prayers and attention.
Patterico at Patterico’s Pontifications has received copies of e-mails between retired Fededal District Court Judge Vaughn R. Walker and one of Ted Olson’s legal partners, demonstrating the depth of collusion between the judge who ruled that Proposition 8, the state constitutional amendment in California approved by the voters banning gay marriage was unconstitional, and Ted Olson who led the legal team seeking to overturn Proposition 8:
Vaughn R. Walker, the judge who struck down Proposition 8, California’s gay marriage ban, sought Ted Olson’s opinion regarding whether Walker should attend next week’s Supreme Court arguments on the gay marriage cases. Olson was one of the lawyers who successfully persuaded Judge Walker to strike down Proposition 8 after a trial held in 2010.
In December 2012 emails obtained exclusively by Patterico.com, Judge Walker, who retired in February 2011, asked Olson’s law partner to “ask Ted if he thinks my attending the argument would be an unwanted distraction.”
When Olson’s law partner responded that Olson thought Walker’s attendance would be a “potential distraction,” Walker agreed not to go, saying he understood Olson’s reaction and was not surprised by it. Walker described himself as “only moderately disappointed not to see the argument,” and added: “Ted’s argument will be spectacular, I’m sure.” →']);" class="more-link">Continue reading
Chief Justice John Roberts’ recent decision upholding the Affordable Care Act, as well as his vote to overturn much of Arizona’s illegal immigration law, has made conservatives think that yet again a Republican president was bamboozled. Personally I think it’s a bit early to completely write off the Chief Justice. For most of his tenure he’s been a fairly reliable conservative vote, and there is still much time (presumably) before he retires. Then we will be better able to assess his legacy.
It did get me thinking, though. What are the worst Supreme Court selections in history? I’m looking at this question in terms of the president doing the selecting. Someone like Ruth Bader Ginsburg, a doctrinaire liberal, wouldn’t make the cut because no doubt she has voted in much the way Bill Clinton would have wished when he picked her. Similarly, I do not include someone like John Paul Stevens. Though over time he veered much further to the left than Gerald Ford or his Attorney General , Edward Levi (who basically made the selection) could have anticipated, Stevens’ jurisprudence was not that radically removed from Ford’s own preferences. In fact, Ford wrote of Stevens:
For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thrity years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution’s broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylorand United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine’s minnows. In words perhaps somewhat less memorable then, “Shouting fire in a crowded theater,” Justice Stevens wrote, “There is something fishy about this case.”
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. I wish him long life, good health and many more years on the bench.
Well, if Ford was willing to base his legacy on his choice of John Paul Stevens, then I’m happy to call Gerald Ford a miserable failure.
This, then, is a list of the biggest mistakes in Supreme Court selection. →']);" class="more-link">Continue reading
A ruling by the New Mexico Court of Appeals has found that Christian photographers cannot refuse to photograph a “gay wedding” on religious grounds. The absurdity and tyranny of this ruling is almost unfathomable, but what is less surprising is the vindictive nature of the entire case. As an entire slew of court cases in Canada demonstrates, the radical homosexual movement is not about fairness, tolerance or equality. Like its equivalents among racial minorities (think Black Panther Party) or feminists, it is about envy, revenge, and domination. As I have argued and will continue to argue, the homosexual movement is the movement of hate, intolerance, bigotry, and totalitarianism. Whether your are Christian or not, whether you have homosexual inclinations or not, the implications of the New Mexico court’s rulings for political liberty, religious freedom and private property rights ought to frighten you if you care in the least about these concepts.
Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare. Yesterday he somewhat toned down his remarks, but still managed to step in it.
At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”
Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”
But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”
As James Taranto points out, this response is wrong on multiple levels. The case that Obama cites in fact pre-dates the New Deal by a good thirty year. Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation. As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters. And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional. In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.
But other than that, I guess Obama was spot on.
The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review. →']);" class="more-link">Continue reading
The reaction to Judge Hanson’s ruling in Virginia v. Sebelius was predictable: rejoicing on the right . . . not so much on the left. A few people actually attempted to analyze the decision on a legal, rather than policy basis. (Shocking!)
It’s also not surprising in the least to hear the talking point going out – like on the appropriately named Talking Points Memo blog linked above – that this demonstrates conservative hypocrisy with regards to judicial activism. After all, don’t conservatives bemoan activist judges who overturn the will of democratic legislatures? This would be a fair point if it actually captured the gist of conservative sentiment on judicial matters.
A Panel of the 9th Circuit has surprisingly issued a wise decision, deciding to allow Proposition 8 to remain in place while the 9th Circuit considers its constitutionality.
This was undoubtedly the right decision. It makes no sense to force a state to marry people while knowing that a later decision could invalidate all those marriages.
One hopes that this is the beginning of a trend in reversing Judge Walker, whose rulings in this case can best be described as what happens when judicial activism meets the dictatorship of relativism.