The American Founders Never Intended 'Government by the Judiciary,' So Why Do We Tolerate It?

The American Founders Never Intended 'Government by the Judiciary,' So Why Do We Tolerate It?

By Tony Perkins and Ken Blackwell President


Tony Perkins is President and Ken Blackwell is Senior Fellow for Family Empowerment at Family Research Council. This article appeared in The Stream on July 22, 2015.


In an 1820 letter to his friend, American diplomat William Jarvis, an aged Thomas Jefferson reflected on how the courts should function in our republican system of representative self-government. “To consider the judges as the ultimate arbiters of all constitutional questions,” he wrote, “would place us under the despotism of an oligarchy.”

Neither the Supreme Court nor the federal judiciary were ever intended to provide what the late Harvard law professor Raul Berger called “government by the judiciary.” Yet increasingly, that is what the nine members of the nation’s highest bench are doing.

Consider the two rulings issued on Obamacare: In the 2012 case the Court blithely said that a penalty can be defined as a tax, thereby providing the enforcement mechanism for mandatory participation in the Affordable Care Act. Last month, it redefined the meaning of the words of the law with respect to the state exchanges such that, as George F. Will wrote, the law “should not be construed to mean what it says.”

More ominously, the Court has now rejected the will of the people with respect to the definition of marriage. Supreme Court attorney and legal scholar John Eastman has noted the profound disregard shown by the Court for “We, the People”:

The issue has been on the ballot in thirty-nine statewide elections in thirty-five different states. The cumulative total: 51,483,777 votes in favor of retaining the man-woman definition of marriage, versus 33,015,412 votes in favor of same-sex marriage. That’s a vote margin of 60.93 percent to 39.07 percent, a landslide in American politics.

Yet these votes were rendered meaningless by a relative handful of liberal jurists who, first at the federal district level and finally in the Supreme Court, decided they would “find” a constitutional “right” to same-sex “marriage” for which the text of the Constitution provides no basis whatever.

Sadly, this pattern of disregard for the clear meaning of the Constitution is not limited to the courts:

We abandon the laws of our country and the Constitution that is the very basis of our liberty and security at grave peril. Yet this is what we are doing, with increasing seriousness.

Many on the Left regard this tendency with a sense of delight; by winning in the courts what they cannot win in the ballot box or the legislature, they believe they have triumphed. That’s why the rulings mentioned earlier have empowered the Left, those forces that want to alter the nature of American public life and reinterpret the Constitution to comport with their vision of what they want our country to look like. And getting the results they want, they demand that the rest of us be quiet. As Harry Reid, then Senate Majority Leader, said when the Supreme Court upheld the health care mandate in 2012, “Our Supreme Court has spoken. The matter is settled.”

Similarly, advocates of abortion-on-demand frequently call the Supreme Court’s Roe v. Wade decision, which legalized access to abortion-on-demand, “settled law” and thereby demand that proponents of the sanctity of unborn life grow silent and go away.

On the other hand, when conservatives win a victory, many on the Left are outraged and demand a change. During his 2010 State of the Union address, in a message watched by tens of millions of Americans and tracked closely by America’s friends and adversaries around the world, President Obama even attacked justices of the Supreme Court sitting about 20 feet in front of him for their ruling in a campaign finance law case, Citizens United.

The same thing happened regarding the Supreme Court’s decision about private companies and contraceptive coverage. Planned Parenthood rejected the Court’s ruling that privately-held companies had the right not to include potentially abortion-causing drugs in the health insurance plans they offer to their employees, instead urging passage of a Minnesota ordinance that would compel all Minnesota companies to offer such coverage. “We won’t stand for moving the rights of women backward,” said Planned Parenthood.

Apparently in the world of the Left, some laws are more settled than others.

Here’s the reality: As with the Dred Scott decision that declared persons of African heritage less than fully human and Plessy v. Ferguson, which declared that race should determine where one is educated (and, inferentially, that blacks were inferior to whites), no Supreme Court decision settles once and for all time any contentious issue. And no federal court, Supreme or otherwise, has the right to usurp the role of Congress or state legislators when it comes to issues that fall naturally in their spheres of authority.

Consider recent history. After years of painful but unremitting work by pro-life advocates, Roe v. Wade is a crumbling bulwark of ideological extremism and bankrupt constitutional reasoning. Since it was handed-down in 1973, a growing group of dedicated Americans have made repeated public arguments that unborn children are persons, that they merit the protection of law, and should be welcomed into life — and their mothers deserve protection from a predatory abortion industry. As Pew Research documented last month, “From 2011 to 2014, 231 abortion restrictions were enacted, while 189 were enacted during the previous decade (2001-2010). In Texas, the number of abortion clinics operating in the state has dropped from 41 in 2012 to 18 today in the wake of a number of abortion laws enacted in recent years.”

Conservatives will not be silent about a federal judiciary that for the most part vitiates the will of the people for the sake of satisfying a liberal ideology. We will not accept a Supreme Court ruling that re-defines, premised on the personal desires of five people, the pre-governmental institution of marriage, one that the people of the states had confirmed through their own constitutional amendments in 31 of 33 states where votes were held.

Many on the Left demand quiescence from their opponents when they win. And they insist on changing federal court rulings when they lose. Conservatives, too, keep working to change rulings that amount to judicial tyranny. But we don’t expect our opponents to stay silent.

After all, this is America. Isn’t it?