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A constitutional republic or a judicial oligarchy?

By Scott Tibbs, April 4, 2013

Mona Charen makes an excellent point in her column last week:

That the court is even being asked to impose a sweeping social change on the nation is illustrative of another lost battle the idea that the Supreme Court is not a super-legislature and that nine robed lawyers ought to refrain from imposing their policy preferences on the whole nation.

It is more complicated than this, but an easy way to understand our federal government is this: The legislative branch writes the law, the executive branch enforces the law and the judicial branch interprets the law. In a perfect world, he judicial branch is to simply apply the facts of the case against the text of enacted legislation and (more importantly) the text of the Constitution. Judicial precedent should play some role but should always be subservient to the text of the law and Constitution. Furthermore, the text of the Constitution should be interpreted within the historical context of the time it was written.

That is not the case, and has not been the case for a long time. Much was said during last summer's decision on ObamaCare about how this would impact public opinion on the court and how John Roberts wanted to impact public opinion of the court - none of which has anything to do with whether the Congress actually had the authority to pass ObamaCare given the Constitution's restraints on federal power.

Other political pundits have suggested SCOTUS could rule the death penalty unconstitutional when there is a consensus that it is wrong based on the number of state legislatures that have abolished it. Again, considering whether capital punishment actually meets the definition of "cruel and unusual" - by today's standards or by the standards of the time the Bill of Rights was written - is not even seriously considered as the political winds are what is the driving factor in a judicial decision.

With the Supreme Court deciding cases based not on the law, but on their personal views of public policy or the political ramifications of their decisions, we no longer have a constitutional republic. Instead, we have a judicial oligarchy and we have no legal structure to defend ourselves against the excesses of government. We can restore the court to its proper place, but only if the President, the Congress and the state legislatures are willing to stand up to renegade judges and assert their constitutional authority. Like it or not, this must include impeachment of judges (including Supreme Court justices) who abuse their authority.