When our Founding Fathers wrote the US Constitution and established the three separate branches of government, they believed it would insure the survival of the newly formed republic. Most of the power of the federal government was placed in the hands of Congress which was supposed to represent and do the will of the people. Second in power was the executive branch where the office of president would have limited powers to prevent the formation of a dictatorship. The least powerful of the three branches was the judicial branch whose sole purpose was to make sure that the Constitution was legally observed.
In today’s America, Congress no longer represents and does the will of the people and has become the least in power. The executive and judicial branches have both assumed far more power than the Constitution allows and in many ways both have become dictatorial. The judiciary in America, including the Supreme Court, no longer base their rulings on the Constitution. Many of the decisions handed down these days are based more on their personal agendas rather than on actual law.
Supreme Court Justice Antonin Scalia agrees. Last week, he was speaking to law students at Santa Clara University in the San Jose suburb. He shared his criticism of the Supreme Court stating that the court has been a liberal court ever since he was sworn in.
Scalia told the law students that the Supreme does not look at the Constitution as a black and white governing document. They consider our founding document to be a ‘living Constitution’ and have done so since the 1920s. A living Constitution is one that changes and evolves over time based upon the liberal opinions by the members of the Supreme Court.
Those liberal decisions, according to Scalia are leading the nation down a slippery slope, explaining:
“At the bottom of that slope, I can’t imagine how you can go any further, is the right to same-sex marriage.”
“Do you think the American people would ever have ratified the Constitution if they had been told the meaning of this document shall be whatever a majority of the Supreme Court says it is. They vote on the basis of what they feel.”
“It’s the destruction of our democratic system. I cannot imagine the system can continue with more and more of the basic rules made by the Supreme Court.”
Scalia also told the law students that the Supreme Court is granting rights to citizens that are not spelled out in the Constitution. Among those wrongfully granted rights is the legalization of homosexual marriages and federally subsidized healthcare insurance. Speaking about the legality of same-sex marriage, Scalia stated:
“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Scalia is often considered to be the leader of the conservative members of the high court. He was appointed to the court in 1986 by President Ronald Reagan. Many list the composition of the current Supreme Court to be 4 liberals, 4 conservatives and 1 moderate conservative. However, Chief Justice John Roberts has been voting more liberal than conservative in recent years, giving liberals the 5-4 edge.
The 2016 election could well decide the future balance of the Supreme Court. The average age of retirement of justices is 78 and including Scalia there are 3 justices over that retirement age. Scalia and Kennedy are 80, Ginsberg is 83 and Breyer is close at 77. Justice Kennedy has been a weak conservative known to tip over the line on some liberal issues. Ginsberg is as liberal as they come and should have recused herself from the same-sex marriage case due to the fact that she has personally performed same-sex marriage ceremonies. She did not recuse herself because she wanted to make sure the court legalized homosexual unions. Breyer started out as a moderate conservative but has drifted over to the dark side of liberalism soon after his appointment to the bench.
It’s quite possible that the next president could appoint 3-4 new members to the high court. Following Scalia’s words, the outcome of the 2016 election could determine whether the high court continues down the slippery slope or if it can start to correct some of the wrongs made by the current court and bring America closer to the country we knew and loved.