Bovard on Supreme Court: It Sanctifies Political Power Grabs

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Bovard on Supreme Court: It Sanctifies Political Power Grabs

September 21, 2015

Americans have long been taught that government judges, including the supreme court, are limited in their interpretations by some sort of metaphysical power emanating from the so-called “rule of law,” or, as a Sandra Day O'Connor once sappily put it, “the majesty of the law.”

Of course, no such limitation exists. Judges — being the ambitious politicians they are — will interpret the law in whatever way suits their fancy, and they are only limited by a desire to avoid retribution from legislatures, correction from higher-ranking judges, or, in some cases, revolt by the masses.

However, when legislatures get into a habit of deferring to judges, judges can then do whatever they think they can get past other judges. Judges don't have to worry about the public because the public, by and large, still subscribes to the fantasy that judges are apolitical sages who make wise decisions based on the “rule of law.”

In reality, judges are just politicians who, at the federal level, comprise a fourth legislature (the executive branch endlessly makes new law, too). The Supreme Court just invents whatever tortured logic it wants and declares its rulings to be the settled “law of the land.” They can invent new rights, declare pretty much any violation of privacy to be “reasonable,”  and erase the few remaining vestiges of federalism tolerated by the federal government. All the while, the public will smile and nod, and know that, at least in their minds, apolitical geniuses are getting the last word on everything.

Fortunately, we have James Bovard to document abuses such as these, and in his most recent article, he catalogs some of the more egregious legislative inventions of the court:

While the court proudly created a new freedom [in its gay marriage ruling], it continues to fail to safeguard freedoms that generations of Americans once enjoyed. Instead, the court perennially turns a blind eye to government agencies that cut vast swaths through the Bill of Rights.

As the court showed in numerous rulings this past term, the primary purpose of “law” nowadays is to provide an opening for presidents to do as they please. In a June decision, six justices saved Obamacare for a second time by effectively ruling that a federally run insurance exchange is close enough for government work to “an exchange established by the State.”

The court’s contortions were even greater in a fair-housing decision handed down the same day. The court sanctified the use of disparate-impact analysis for housing discrimination, thereby creating vast liability for local governments, insurers, and other businesses due to unintentional statistical discrepancies. Five justices sided with the Obama administration, ignoring the actual words of the 1968 Fair Housing Act and instead invoking the logic of previous court rulings on other subjects. As a result, any locality with a lower percentage of minorities than the national average could find itself a target of federal housing enforcers…

In a series of rulings beginning in the 1990s, the court green-lighted a vast expansion of confiscation, even without criminal conviction, based on contorted ancient precedents. For instance, the court invoked an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. ships to uphold the confiscation of an automobile jointly owned by a husband and wife, after the husband was caught with a hooker on the front seat. Hundreds of thousands of citizens have seen their cash, cars, or other property commandeered merely because a government agent suggested that it might have been linked to some illicit use.

For more:

The Mythology of the Supreme Court

Do People Still Believe that Stuff About the Supreme Court Being Above Politics?


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