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  • Writer's pictureGregory N. Austin

SCOTUS Abandons Judicial Restraint

The Founding Fathers wanted all important political issues to be debated in the marketplace vigorously. Let's do it and make sure the public is informed! The rule of law is the very soul of our legal system. How we honor it shows the strength of our free society. We better head off the despotic activities in our midst. I see some dangers and I hope a majority of Americans see them also, especially in the legal community. We all must demand remedies. We must reason our way out of this with enlightened and unified citizens on a mission to overcome ignorance at all levels.

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The highest court in the land is now on a glide path of abandoning truth and reason, turning instead to ideology found in political circles not relevant to our U.S. Constitution or to the objective of what the law would be, it seems to me anyway. The justices don't seem to understand that the rule of law is the very soul of our U.S. legal system. But it is now being twisted into a plastic, groundless script that you can use to fulfill a particular preconceived notion, which seems stranger than fiction.

 

Many Americans now believe that SCOTUS has become political in nature. Some of these polls show 70% of the American public hold this opinion. Does that matter? I think it does. A lack of confidence in our legal system, especially at the highest level, has no positive aspects that I can see. Why so much cynicism? SCOTUS may be part of the reason.

 

Two SCOTUS justices, (and their wives) have been in the news recently for several particular reasons - public revelations of their political activities and positions taken. The justices have taken questionable gifts, and participated in controversial discussions that also went public. Every American is entitled to their opinion of course, but if that opinion involves issues coming before SCOTUS there are other considerations. Can any particular justice be completely objective? Maybe not, but shouldn't he or she recuse themselves from participation in a case where they or their wives have publicly gone on record over political positions? Recusing oneself from legal cases has a long history in American jurisprudence. Did that happen in the ex-president Donald Trump's immunity case? No, it did not. Clarence Thomas and Samuel Alito participated in that case. Is that OK? They both seem to think so despite ample evidence that they had preconceived opinions long before this matter was before them. We must ask the question, is truth just another political opinion that can be discounted by indifference or even arrogance?

 

The Federalist Society and the Heritage Foundation are two very opinionated and influential organizations, especially appealing to those who question their own government and that government’s day to day activities. Their interpretation of what's good for America and why we should adopt their positions over the U.S. Constitution is quite remarkable. The Federalist Society has replaced the American Bar Association over what legal questions are important for considering new candidates for the U.S. Supreme Court. Do they use a legal scholarly curriculum for their decision making? Dear reader please excuse my smile. It's about their ideology and their concepts of the interpretation of the U.S. Constitution, that is what they use as judgment of a new candidate. Are they entitled to their opinions and their views? Absolutely! But legal reasoning should be used, not absorbed ideology from outside the bench. Reason must dominate legal decision making and as the last court of resort. Jaded ideology is the danger.

 

The Heritage Foundation is a 501 (c) (3) organization. Their donations can be written off by the donor. Their leader is Keith Roberts and they have produced a 900 page document called Project 2025, that is 900 pages of what America needs to do to succeed, and the theme is mostly critical of American institutions. They also want to change the trajectory of the United States Constitution which has made it clear there should be no religious test. Mr. Roberts's point of view sometimes has emphasis on seeking tax free dollars that can be written off. His opinions on other aspects of changing American Society reflects a Christian point of view where he overlooks the word of Christ who said, “render unto Caesar's what is Caesar's and to God's what is God's”. He also fails to recognize that Saint Peter in the New Testament of the Bible said, “honor your government, pay your taxes, and pray for those in authority”. I do not believe the U.S. Constitution, suggesting no religious tests, is a violation of God's will. Remember the Founding Fathers recognized there are thousands of Christian sects. Which one would we choose to lead us if we allowed a Christian theocratic government? We see throughout the world theocratic governments often fail more often than dictatorships, democracies, Republics, etc.

 

Remember we are a government which is the envy of the world with 16,000,000 new jobs in the past 3 1/2 years, stock markets breaking records, legislation to overcome inflation, legislation to help advance growth in America, and other things quite important being accomplished. The three things perhaps that are worrisome still are; inflation which is slowly coming down, the national debt which is half what it was under the administration of Donald Trump and climate change. Our present government is in fact attempting to come up with remedies for these problems. I do not believe we have reached the point politically in the United States where we must dispose of extremely important parts of the U.S. Constitution or our institutions, simply because of strong ideological positions that often seem empty. When the Heritage Foundation’s Mr. Roberts says he is calling for a second revolution in his current governing pronouncements, I would refer him to Thomas Jefferson who stated, “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants, it is it's natural manure.” So, what do we have here, are we going to have a dispute with each other as a nation? It does not make sense when we are so well off economically to fall into political arguments over the way to run a government. We already know how to run a government; we have the United States Constitution with the rule of law that remains the soul of our legal system. Why can't we just stick with that instead of running off with accusations between each other too frequently. Why can't we honor those agencies in government given modified power, by those men and women who have been properly elected or appointed?

 

SCOTUS must not surrender to some ideology absorbed by them from outside of the bench. All they have to do is save their own reputation by sticking to the facts and the evidence before them. The law of reason not ideology is what needs to be embraced by some members of the court.

 

SCOTUS took two cases from the appellate bench this year, the Chevron case and the immunity case. The immunity case was brought by Donald Trump's attorneys’ suggestion that the President had immunity on all issues. In 240 years of the U.S. Constitution there has never been an attempt to expand the rights of a president politically. SCOTUS has, despite the appellate court barely looking at this case, reopened the case and now after six months will delay the trial of the January 6th 2021 insurrection and the invasion of the Capitol building. The question that must be now answered by a lower court is what is an “official act” by a President? Conceivably, using that formula could expand the rights of a President to do extraordinarily questionable activity. For example, when President Joe Biden heard of this decision, he rejected it immediately as if to say he wanted no expansion of his authority. Why this case was allowed on appeal has many people baffled. In the Chevron case SCOTUS has cut back on the powers of administrative agencies to enforce their rules. Now the courts will get to decide legally what can and what cannot be enforced by agencies like EPA, FCC, and Energy, even though judges may not be technically qualified to take on federal, complicated enforcement issues. Is this a case again of possible reason giving way to ideology? Six members of SCOTUS believe government oversight for the good of society should be curtailed. Stay tuned because it is going to be sticky and has every possibility of harming the public.

 

No outside political or otherwise group should believe they have SCOTUS in their back pocket.

 

I agree with J. Michael Luttig, the former conservative appellate judge, and Laurence Tribe a long time former constitutional professor at Harvard, who both have suggested publicly that the immunity decision is dangerously expanding the powers of the president, perhaps violating the U.S. Constitution. They both seem to think it is a case of bad law being put on the books

 

I would like to see the American Bar Association set up a seven-person lawyer panel with the express commission to study these two cases and their possible impact on our American Society. They must poll every Dean of a law school and every Constitutional lawyer of a law school. They must go to every appellate judge, former and active, to get an opinion on whether SCOTUS has gone too far. Remember the French expression “Qui ne dit mot consent”, silence is consent. Dear reader, we must talk about this. And to keep an informed voter we must produce a document with the answers found from the study and it must be completed by October 15th 2024. We must give the voter the information needed to keep them informed and free of cynicism. This can be handled in my opinion very easily if we get the legal community to cooperate and to look at the U.S. Constitution as our political Bible and the soul of America's legal system. Lets not stray off course and jeopardize a 248 year old legal system.

 

Reason should dominate our legal decisions. I have three copies of the U.S. Constitution and I disagree with SCOTUS lately. The Founding Fathers wanted all important political issues to be debated in the marketplace vigorously. Let's do it and make sure the public is informed!

 

Again, the rule of law is the very soul of our legal system. How we honor it shows the strength of our free society. We better head off the despotic activities in our midst. I see some dangers and I hope a majority of Americans see them also, especially in the legal community. We all must demand remedies. I am not a lawyer, but I can truly say the U.S. Constitution is being severely tested.

 

We must reason our way out of this with enlightened and unified citizens on a mission to overcome ignorance at all levels. May God bless the United States of America and keep our children safe from mayhem and chaos.

 

Opening Image: Mother Jones News/J.Scott Applewhite/AP, New Republic/Tom Williams/CQ-Roll Call Inc/Getty Images, National Review/Yuri Gripas/Reuters, WSJ Rod Aydelotte/WACO Tribune Herald/AP

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