Upon hearing of Justice Ruth Bader Ginsburg’s death, the Left succumbed to rage. Her death prompted threats of violence, at least one screaming fit posted online, and rants on social media. Democrats vowed to make a nomination difficult, and some threatened to pack the court.
This open court seat is the most important development since, well, the last seat opened. Why? The Supreme Court has too much power. Congress has failed to legislate as it should, and the Supreme Court has turned into a super-legislature.
Some people think this open seat has caused mayhem because the Supreme Court has become too political.
If Supreme Court justices did their jobs properly their political party affiliation would be irrelevent. It’s only because they ignore the Constitution and decide cases based on politics not law that it’s an issue. The Supreme Court is the branch that has failed America the most.
— Peter Schiff (@PeterSchiff) September 19, 2020
Certainly, the Supreme Court can appear political when handling cases, but it has less to do with the nine justices being overtly partisan and more to do with the fact that they often handle overtly political topics that are meant for the legislature.
This point of view is not new. During the hearings for Justice Brett Kavanaugh, which were a catastrophe, many made the same observation. Kim Holmes, the executive vice president of the Heritage Foundation, wrote, “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.”
Over the years, the Supreme Court has created new rights, which somehow often stem from a speck of truth in the Constitution: abortion, sexual orientation and gender identity laws, same-sex marriage, and more. This contention doesn’t mean that these rights shouldn’t exist but more that the process by which they became rights, a five-judge majority ruling, is so antithetical to how the Founding Fathers wanted rights to be determined that it’s hard not to feel that the Supreme Court has become the executive, the legislature, and the judiciary, all rolled into one.
In a democratic republic, the people make their voices heard through state, local, and presidential elections and through their representatives in Congress. Ideally, if people want abortion protections, same-sex marriage, sexual orientation and gender identity protections, and other policies, they can either follow the legislative steps necessary so a referendum appears on their November ballot or they can petition their representatives to draft a bill with their issue on it and present it before Congress.
Of course, people should be able to litigate their cases in the high court when necessary, but sometimes, personal grievances end up as brand-new, controversial, legally binding rulings. These have made the Supreme Court a super-legislature and Congress a bystander.
Holmes said further, “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.”
The Supreme Court ruled in June in Bostock v. Clayton County that an employer who fires an employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. This astonished many, not because people are bigoted or opposed to gay and transgender rights in the workplace, but because it hardly seemed true to the original intent of the law established in 1964. It also hardly seemed to be an urgent, nationwide issue that needed to become law.
Of course, times do change. Some laws need to be thrown out and updated (see Brown v. Board of Education for one example), but often, this is something best handled at the legislative level. This is, after all, its job.
Rep. Bruce Westerman represents Arkansas’s 4th Congressional District. After seeing the Supreme Court’s Bostock ruling, he was disturbed that it was legislating, writing in his weekly column, “I’m concerned to see the judicial branch overreaching into the legislative branch, and often, the Court does this because Congress fails to act. However, in this instance, Congress had acted and was very clear in the language of the day with the term ‘sex’ meaning biological gender, nothing more, nothing less.”
The Supreme Court is an important branch of our government. As the self-described “final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”
However, when a Supreme Court justice vacates his or her seat or dies, and nearly all hell breaks loose, it’s time to ask ourselves if it’s because we’ve given the court too much power, and if so, when will we take it back?
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
