OPINION:
The New York Times’ lead headline Saturday, July 2, claimed, “Court’s Term Was Its Most Conservative Since 1931.” A more accurate headline would have been, “Court’s Term Was Its Most Democratic and Constitutional Since 1931.” After all, the Supreme Court strengthened the ability of the people to govern themselves and undermined authoritarian government by the few.
Despite the fact that the court issued a number of rulings where there was wide agreement, the left has focused on a few where the division was stark, just not for the reasons they claim.
In Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court left to the people and our elected representatives’ profound decisions about whether abortion should be proscribed in part or whole, or left entirely unrestricted. Dobbs was not pro-life or anti-abortion; it was pro-democracy and pro-Constitution. The Supreme Court expressed no opinion as to whether abortion should be legal or regulated. Rather it ruled that as the Constitution is silent on abortion, the issue should be decided by the people through their elected representatives. The Supreme Court respected democracy in the ruling: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In criticizing Dobbs, few if any seriously argue the Constitution includes a right to abortion; instead, critics essentially claim the Constitution should include a right to abortion. But, as the court held, where the Constitution is silent on an issue, it is for the people through their democratic institutions to determine what the law should be. Even late Justice Ruth Bader Ginsburg questioned the reasoning of Roe and the strategy of so dramatic an assertion of authority by the court.
When judges look outside the Constitution or statutes, in truth they look only within themselves to determine what they believe is right and wrong. That is precisely the exercise American voters should engage in, but it is abhorrent in judges as it leads to authoritarian rule by the few and strips the people of their right to self-determination.
In West Virginia v. Environmental Protection Agency, the Supreme Court protected the separation of powers and democracy by again preventing the few unconstitutionally from ruling over the masses. The Supreme Court held unelected (often life-long career) civil servants cannot make law — only Congress can — at least as to major questions significantly affecting American life. Again, West Virginia v. EPA was not pro-environmental or anti-environmental. It was pro-democracy and pro-Constitution.
EPA’s actions in the West Virginia case were particularly obnoxious. The Obama administration desired to shut down or significantly curtail the use of coal and gas power, but Congress refused to pass supporting legislation. In 2014, faced with a Congress that failed to comply with his wishes, then-President Barack Obama famously — perhaps infamously — said: “I’ve got a pen and I’ve got a phone — and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” So, in 2015 the Obama administration end-ran Congress and caused the EPA unilaterally to issue regulations which Congress refused to do. That is: Unelected EPA staff effectively ordered a nationwide shift away from coal and gas after the people’s democratically elected representatives in Congress refused to do so.
The Supreme Court overturned the EPA’s action, thus enforcing the Constitution’s separation of powers and again defending democracy. As Justice Neil M. Gorsuch aptly explained in his concurring opinion: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
Under the Constitution, Congress passes laws, and the executive branch implements them. The executive branch and its administrative state — thousands of unelected bureaucrats — are not supposed to legislate. Such separation of powers is a crucial feature of American democracy. In West Virginia v. EPA, the Supreme Court effectively called out Congress as well for its decades-long abdication of its responsibility to resolve difficult issues and enact laws rather than punt to administrators. To paraphrase New England Patriots football coach Bill Belichick, the Supreme Court told Congress to “do your job!”
Finally, the Supreme Court, in several decisions, affirmed that when the Constitution does clearly provide a right, the government must respect it. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that, as the Second Amendment explicitly gives the people the “right to bear arms,” states cannot ban people from bearing arms by wholesale refusing to grant gun carry permits. In Kennedy v. Bremerton School District, the Supreme Court held that as the First Amendment explicitly prohibits the government from “prohibiting the free exercise of” religion, a school board cannot fire a football coach for praying after a football game.
The Supreme Court is handing power back to the legislative branch. Ironically, although they control both houses of Congress and the presidency many Democrats are among the most vociferous opponents of the court’s rulings. And they haven’t stopped at mere objecting. Some have called for court-packing or impeaching justices, and refused to condemn — indeed, egged on — intimidation and violence against justices with whom they disagree. One even called for abolishing the court. Such actions send a clear and unmistakable message that the left cannot enact its agenda legislatively as intended under the Constitution and has resorted to “legislation from the bench” — from the district courts to the Supreme Court.
Because of the rulings discussed above, America will soon find out if the left’s agenda is as popular as their allies in the media would have the country believe or whether it can only be achieved in violation of our American system of government — which is why they doth protest the high court’s recent rulings so much.
As President Abraham Lincoln observed at Gettysburg, the Framers created a democratic republic “of the people, by the people, for the people.”
This past term the Supreme Court affirmed that such a democratic government, subject only to limitations contained within the Constitution and not within the heads and hearts of unelected judges and bureaucrats, is what we in America are to have.
• John Daukas is the former acting attorney general for civil rights at the United States Department of Justice.
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