Saturday, February 20, 2016

The Supreme Court Has Become Too Powerful : ...

Fight to Replace Scalia Proves Supreme Court Has Become Too Powerful



The stakes are high—very high. Finding a replacement for deceased Supreme Court Associate Justice Antonin Scalia will be a battle royale. But why should one government official’s position be so existentially important? Yes, control of the Supreme Court hangs in the balance, but that raises the question as to why the Court itself is so powerful. Could it be that the answer to that question tells us something about our increasing inability to govern ourselves as a free 
people?

We have increasingly allowed the Supreme Court to decide controversial issues we have been unwilling to solve legislatively.

Let’s face it. Ever since at least the 1960s (and frankly even before) we have increasingly allowed the Supreme Court to decide controversial issues we have been unwilling to solve legislatively.

From civil rights to abortion to the issue of gay marriage, the high court has ruled on key issues well outside the legislative process. New constitutional rights were created out of whole cloth. If abortion couldn’t be legalized at the ballot box, or if gay marriage could not be made lawful by Congress or the states, a majority of the Supreme Court—a mere five people—would step in and do it for us. Using the power of judicial review, a new policy would be imposed simply by redefining it as a constitutional right.

The practice of judicial fiat is so commonplace we seldom realize how radical it is. We are, quite simply, losing our sovereign power to govern ourselves. We have allowed the courts in general but the Supreme Court in particular to become too powerful.

We are, quite simply, losing our sovereign power to govern ourselves.


No single government official outside the president should be so important that his or her replacement could shift the course and destiny of the nation. And yet that is precisely the case with finding a replacement for Scalia. No matter which way it goes, the next Supreme Court justice will decide the balance of power of an institution that has arguably become more powerful than the Congress and as powerful (at least) as the presidency.


This was not what the Founders intended. Sure, we live in the modern age where a lot of water has flowed under the bridge of judicial review, but that’s precisely the problem. We have allowed those waters over time to become a flood, swamping in some cases the high court’s main purposes of safeguarding our existing rights and preserving the rule of law.

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