The Height of Hypocrisy

In recent days the Supreme Court has cast aside the Constitution, statutory construction, and even the plain meaning of words in an attempt to explain and justify wading into the policy making arena.

As the Court has rewritten Obamacare and invented a new right to same-sex marriage, Hillary Clinton and her fellow liberals have cheered the Court’s policy-driven decision making.

Clinton has been quick to lavish praise on the Court as it ignored the Constitution to protect her treasured liberal policies.  This stands in marked contrast to her frequent attacks on the Court for the landmark decision in Citizens United v. FEC where the Court dared to adhere to well settled Constitutional principles.

Her beliefs regarding the role of the judiciary are dangerous.  Clinton wants a Court that will rewrite the law to achieve policy goals, just as it did last week.  The precedent of imposing massive public pressure on the Court in order to win a pivotal decision in the future was put in motion by President Obama when he demonized the Justices for their Citizens United decision at the 2010 State of the Union address.

In King v. Burwell, Justice Roberts went to great lengths to protect Obamacare for a second time.  The case addressed one simple question: what did Congress mean when it created tax credits for individuals who purchased healthcare plans from “an Exchange established by the State”?  The fact that the question was even before the Court was laughable.  Every American knows what a “state” is.  To eliminate any doubt, Obamacare even defined the term: “each of the 50 States and the District of Columbia.”  Is the Secretary of the United States Department of Health and Human Services a “state”?  No, she’s the head of a federal agency.  Game over.

Unfortunately, the Court ignored the English language in an effort to save Obamacare.  The majority opinion shrugs this off as merely correcting “inartful drafting” but in truth the Court made a conscious policy decision to disregard the text of the statute in order to protect the Obamacare regime.  As Justice Scalia quips: “We should start calling the law SCOTUScare.”

The decision in King v. Burwell was a brazen attempt to legislate from the bench.  The next day, the Court went a step further.  In Obergefell v. Hodges, the Court conjured up a Constitutional right to same-sex marriage.  Again substituting policy preferences for the law, the Court found that there is a fundamental right to same-sex marriage under the Constitution.  This set aside the definition of marriage that had endured for centuries.

This time, Chief Justice Roberts rebuked the Court: “this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.  Under the Constitution, judges have power to say what the law is, not what it should be.”  If only he’d taken those words to heart when authoring his opinion in King v. Burwell.

The shift in judicial philosophy on the Court is worrisome.  When the Court begins to re-imagine the law as it sees fit, it’s taken on not only an activist role, but also the duties of the legislature.  Justice Scalia aptly warns that: “This practice of constitutional revision by an unelected commit­tee of nine, always accompanied (as it is today) by extrav­agant praise of liberty, robs the People of… the freedom to govern themselves.”

While the current policy-driven Court and its decisions are causes for concern, the real potential for trouble has yet to come.  The next President will likely have the opportunity to appoint as many as four Supreme Court Justices.

Undoubtedly, some Justices will base their retirement decisions on who occupies the White House.  While that will play a role, there is a more pressing concern.  Some members of the Court are getting on in years.  Four Justices are over seventy-five years old – their days on the Court are numbered.  The next President will be able to shape the Court with his or her nominees.  Their impact must not be understated.  With the stroke of a pen in two pivotal cases, the Supreme Court has made a profound impact on our nation.

Because of the Citizens United ruling five years ago, Barack Obama, Hillary Clinton and their leftwing ideologues have worked to undermine the Court’s credibility.  Now Clinton has even called for a litmus test for judicial nominees, pledging to only appoint judges who are committed to overturning Citizens United.  This isn’t the first time she’s railed against Citizens United.  It’s part of a pattern.  Clinton lauds the Court when it casts aside the law to advance liberal policies, but criticizes the Court when it embraces the Constitution.

Clinton wants judges who will rewrite laws to promote her liberal policy agenda, and is demanding they pledge to ignore the First Amendment.  Judges of the Clinton-ilk will radicalize the Court and usher in a wave of liberal policies with no regard for the law or the Constitution.  This sort of judicial activism must be stopped before it causes irreparable harm to our laws and our way of life.