Friday, June 28, 2013

The activist courts

This week the Supreme Court announced a historic ruling, declaring federal discrimination against gay couples seeking marriage to be unconstitutional.  For many, this was a day to celebrate the protections of minority rights that many thought unachievable only a few years ago.  This came on the back of a ruling overturning key provisions in the landmark 1965 voter's rights act, once credited as the greatest civil rights achievement of the 20th century.  The dichotomy of these two rulings got me thinking about the purpose of the court in American politics.  Is it an institution that should be limited in nature, identifying and overturning laws that usurp only from our most commonly agreed principals, or should it be an institution that seeks to apply those principals as broadly as possible, with the purpose of protecting those who congress is unwilling to protect?

It is important that the mission of the courts in determining the constitutionality of laws be crystal clear, as this small group of citizens is given unprecedented powers to invalidate legislation passed by a majority of a democratically elected members of congress, while themselves never facing a direct election by the public.  Their stamp on public debate is final, leaving us with no alternative but to follow what they decree.  They are ideally supposed to live outside the pressures of politics, applying the basic principals on which our government was founded as a litmus test to the validity of laws.  But reality is a far different animal.

The modern court is filled with ideologues bent on stamping their own dogma permanently into America's legal system.  These judges were hand picked in turn by ideologues in the white house, who seek to use the court as a proxy in political fights to ensure that their agenda cannot be challenged.  Controversial rulings often swing on a single vote, a single person, deciding the fate of laws critical to millions of Americans.  We require the principals on which they rule to be passed by two thirds of both the house and the senate, and then three fourths of the states must vote to ratify the expansion of the freedoms outlined.  They were designed to be broadly agreed upon, not controversial in any manor.  Yet the reality is the words of the constitution are twisted to fit whichever argument is championed by a justice, seen in the many many cases having dissenting views.  Why do we not hold these justices to a similar standard as the constitution?  We require criminals to be found unanimously guilty by a jury of their peers, but the whole class of law to which they are tried to rest on a tiebreaker yes or no swing vote?  Absurd.

The modern court is an activist court, both on liberal and conservative causes.  It embraces controversy... We've seen that in recent days, in the overturning of the long standing voter's rights act, and throughout courtrooms of the past century, from Roe vs Wade, to Bush vs Gore.  I believe the powers we have enshrined in this institution need be flexed only when there is widespread agreement.  The courts should need more than majority, they should need super majority to apply their ideals.  It could be done, as over 60 percent of rulings were unanimous at one point this year.  Deferring to the will of the elected legislature should resolve controversies.  The panel should be expanded, so that a wider range of views is represented by the votes.  Members of the court should be nominated by a wide body, not stuffed by any one president.  Some mechanism should be included to ensure minority views are also represented.  Our courts have been sliding down the slippery slope to the political muck.  It is time we bolster the institution with the protections to insure that it functions as it was originally intended, as the bellwether protector of the principals on which we all stand.

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