Thomas Jefferson observed, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed…Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”
Yet many Americans still trust the SCOTUS to stay above the fray and interpret the Constitution free from political bias or influence.
Earlier this month, as reported by the National Law Journal, “More than 100 female lawyers joined in a brief to tell the U.S. Supreme Court about their own abortion experiences and why their reproductive freedom was pivotal to their personal and professional lives.”
When it comes to abortion, the Supreme Court has one job – judge according to the law – first and foremost to determine if the Constitution empowers the federal government to regulate it at all. (It doesn’t. Abortion clearly falls within the sphere of power left to the states and the people.)
So, what in the world do the personal lives of these 100 women have to do with, well, anything? From a constitutional/legal perspective, whether or not abortion served some good purpose for some women doesn’t matter. Their glorious abortion experience has no bearing on the meaning of the Constitution, the scope of power delegated to the federal government, nor the law.
But clearly, these female legal-eagles recognize their “tug on the heartstrings” stories may sway the justices. Otherwise, they wouldn’t have gone to the trouble of preparing a legal brief. They expect it to influence the Court. As Janice Mac Avoy put it, “We wanted to signal to members of the court that abortion is not just an abstract concept.”
Again, what does this have to do with the legal issues the Court should focus on?
I don’t mean to only pick on”pro-choice” lawyers. Pro-life advocates do the same thing. They file legal briefs featuring women telling their abortion horror stories. This has nothing to do with the the Constitution or the law either.
All of this goes to show that the Supreme Court isn’t all about determining the original meaning of the Constitution or keeping federal power within its proper limits. It engages in a political process, just like the president and the Congress. It issues opinions to promote preferred outcomes. It has no qualms about expanding federal power beyond its limits in order to serve some social good it perceives and defines.
That was Jefferson’s point. Judges don’t sit objectively above the fray. Yet the vast majority of Americans seem perfectly content to allow a panel of nine politically connected lawyers to have the final say on constitutional matters. They see no problem with giving federal employees the job of determining the limits of federal power.
This is insane.
And it’s why the federal government today enjoys virtually unlimited power.
Littleton Waller Tazwell served in the U.S. House and Senate, and as the 26th governor of Virginia. He understood the absurdity of making the Supreme Court the final arbiter on disputes involving the powers of the federal government.
But all must know that the robes of office do not cover angels, but mere men, as prone to err, as any other men of equal intelligence, of equal purity, and of equal constancy. We all know, too, that some of the supreme Judges of the United States have not thought it unbecoming their high places, to accept Foreign Missions, to present themselves as candidates for other offices, and to enter into newspaper disquisitions upon party topics. I do not mean to blame them for such things, but merely to shew from such facts, that the rights of sovereign States, when assailed by the government of the United States, could not be safely confided to a forum so constituted, even if it was possible that it could take cognizance of the subject.”
Jefferson’s words seem eerily prophetic when he argued such a system “would place us under the despotism of an oligarchy.”
And here we are.