On television Justices Thomas and Scalia lavishly praise extremist liberal activists. For those who eviscerate the Constitution such praise is unjustified on the merits as well as contradicted by the scathing writings of Thomas and Scalia themselves.
CONTINUED FROM Prelude
NOTE: It is the readers choice whether to consult or disregard the links below. The main goal here is to be easily understood while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links.
I. Lavish Public Praise
It is daunting to dispute Justice Clarence Thomas when one agrees that he is a national treasure" and our greatest justice." Nevertheless with the presidents second term ominously portending a Supreme Court nightmare unimaginably more spine-chilling than it already has been for the last two generations it is vital to place in perspective the justices repeated recent televised appearances lavish with praise for his colleagues especially the liberals."
Last September Thomas averred that all justices are good people" who try to get it right" and who dont agree with each other but … agree that this is more important than we are and weve got to make this thing work"; he singled out Justice Ginsburg as a good person" and fabulous judge." On January 29 he explained that she makes all of us better judges" and proclaimed Justice Kagan a delight."
Thomas is not alone. Purportedly conservative commentator Jennifer Rubin asserts: I may not agree … with … Justice Breyers constitutional approach but I have no doubt he is trying to get it right." On November 27 Justice Scalia stated all his fellow justices are honest" and decide cases fairly and honestly." Previously he characterized Justice Ginsburg with whom he often disagrees as among some very good people who have some very bad ideas."
These seemingly reassuring statements are glittering generalities lacking any evidence or explanation of meaning. Specifically what differentiates good" and bad" people? Should officeholders be evaluated in a vacuum divorced from the consequences of their official actions based on bad ideas"? Does sincerely trying to get it right" make a judge good" and fabulous"? Why is it good to make this thing work" if doing so causes great harm? Is the televised off-the-cuff warm oral praise by Thomas and Scalia supported by their own considered written words in official Supreme Court opinions?
Before turning to those writings it is important to provide a context.
A College Bull Session?
The Supreme Court is not a debating society a scholars think tank or an ongoing college bull session." Justices wield fearsome power to determine the outcome of real controversies between people engaged in very substantial often life and death disputes. Decisions often cause immense joy and agony for example joy for rapists and murderers and unspeakable agony for their victims. Moreover the high court decides not only winners and losers among actual litigants but also among competing public interests on the most critical and fiercely contested political issues. Justices ideas" result in highly consequential decisions adopting or imposing values and policies often undemocratically. (Justice Kennedy ostensibly figured this out in March experiencing an epiphany after 38 years as a federal judge including 25 as a frequent example on the high court and 21 after Justice Scalia complained.)
Lincoln famously warned: if policy upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers." To a large extent that has happened. The high court has become the last best hope of democracys losers. When they cannot prevail in fair debates and elections they zoom to the court to overturn the results.
In his autobiography (8) Justice Douglas revealed a shattering" statement by Chief Justice Hughes: At the constitutional level where we justices work 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections" Douglas added: I had thought of the law as principles chiseled in granite. I knew judges had predilections. …But I had never been willing to admit to myself that the gut reaction of a judge … was the main ingredient of his decision … Judges … represent ideological schools of thought …. No justice was neutral."
So the very bad ideas" of justices are not harmless academic musings. They are gut reaction" value judgments. And not just minor ones. Abusing interpretation" justices often ram their own personal morality down the throats of a strongly opposed large majority. Consider two examples
First it is largely unknown that media-protected justices have played an immensely toxic role in encouraging highly unpopular illegal immigration. Law professor Lino Graglia demonstrates (9-11) that despite widespread misinformation the Constitution does not grant citizenship to American-born babies of immigrants. It is justices rulings that effectively have made them citizens. Moreover an unelected bare majority explicitly required that illegal foreign-born aliens be given a free public education gratuitously adding that unlawful aliens babies born here are citizens thus entitled 3 to all the advantages of the American welfare state."
Second for four decades justices who consider themselves morally superior to the public have done everything they could to subvert and repudiate capital punishment despite its being explicitly and repeatedly authorized by the Constitution. Those vitally affected especially victims and their traumatized loved ones are not likely to yawn about good versus bad ideas. As explained elsewhere an unbridgeable values chasm exists between victims of the worst crimes and the zealous devotees of their depraved victimizers." The latter are likely to pronounce good" those justices who will do anything to save murderers and rapists; the former are likely to disagree sharply and painfully. (More in Part III.)
Whats Good" about Making Bad Ideas" Work"?
Justice Thomas implies that there is something laudatory about making the court work. But as shown by Thomas Sowell very bad ideas" can be very destructive and even horrifying. For example if Iran successfully produces nuclear weapons that work" there can be nuclear attacks against Israel and the United States as well as nuclear blackmail. That would certainly be an example of something that works." Scalia himself recently observed: kings can do … good stuff that a democratic society could never achieve … Hitler produced a marvelous automobile and Mussolini made the trains run on time. So what? That doesnt demonstrate whats a proper interpretation of a Constitution."
Is celebration warranted when improper and often dishonest so-called interpretations work" to produce both unconstitutional and harmful or even disastrous results? Before giving kudos to the Supreme Court for working" it must be determined if this is toward good" or bad" policies and if it results from abuse of power to impose personal values of justices rather than the Peoples as expressed in their Constitution and statutes.
Obviously the Supreme Court as an institution works in the sense that it has questionable legitimacy and its diktats are so far accepted. But in another sense justices for two generations have worked" by undermining the rule of law to achieve a far left agenda that could not be implemented by full fair and open debate in a democratic republic. And they are not done yet not by a long shot!
Making bad ideas work has required a frontal assault on the rule of law for a very simple reason: From Woodrow Wilson to Barack Obama condescending leftist elitists have realized that the Constitutions protected freedoms would prevent dictatorship of often unpopular reforms" by those who think they know whats best for the people better than the people themselves.
Recently frustrated leftist law professor Louis Michael Seidman has called the Constitution so utopian yet downright evil" that we should give up" on it. He apparently thinks the Supreme Court has not rendered the document sufficiently unrecognizable to its Framers.
Just last June five fabulous" justices over a vehement ObamaCare dissent joined by Thomas and Scalia made the court work" by driving another nail in the coffin of federalism a critical Constitutional safeguard of liberty against federal tyranny. Justices have been legitimizing unlimited federal power for over 70 years as they previously sanctified segregation for 58 years. The court worked" by seizing the highly divisive abortion issue from the states creating a right" that even highly respected prominent liberal scholars concede is nowhere in the Constitution. And it should never be forgotten that notwithstanding President Buchanans prediction that the slavery issue would be speedily and finally settled" by the Supreme Court six justices worked" to produce a decision that took a civil war to overturn" as the late Judge Bork put it.
A" for Effort?
There are two problems with the mantra that sincerely trying to get it right" makes a justice good."
First this is a strikingly low standard for highly educated and trained powerful judges. They dont have to actually get it right; if they try give them an A-for-effort." Should medical and law licenses be granted to all who study very hard including those who fail their exams? Does trying to get it right" trump actually being right? As Winston Churchill pointed out it is no use saying We are doing our best. You have got to succeed in doing what is necessary." What is necessary for justices is to apply the law not misstate and rewrite it.
Second sincerity can be downright dangerous. It is a short step from trying to get it right" to arrogantly concluding not merely that a view or policy is right but that this must be forced upon everyone for their own good by elitists who presume themselves to be betters because they are cocksure that they know better.
Judge Learned Hand cautioned precisely that the spirit of liberty is the spirit which is not too sure that it is right." Self-righteous self-certainty has been a hallmark of ruthless fanatics throughout history. After all for one convinced of being right" wouldnt it be immoral or even sinful to tolerate what is wrong"? If necessary why not just torture and murder heretics?
Surely the fanatics who flew planes into the World Trade Center thought they were right." By all accounts sixteenth century Pope Paul IV was personally honest and incorruptible; but he also was convinced of his moral superiority and that he was right." So he became a reformer." The result: ghettos and persecution for Jews and an intensified Inquisition accompanied by the most unimaginable torture to save souls." Positive he had got it right" this autocratic pope ordered law student Pomponio Algerio to be slowly boiled to death in oil to save his soul and protect the church from heresy. In turn an unrepentant Algerio convinced of his own rectitude calmly accepted being boiled in oil also to save his soul!
Giving thanks for small favors at this point in history justices do not actually boil in oil those who disagree with them. Nevertheless the sobering reality elaborated in Part III is that these fabulous" and good people" have no qualms about further and cruelly torturing the tortured to protect their torturers.
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Lester Jackson Ph.D. a former college political science teacher views mainstream media truth suppression as essential to harmful judicial activism. His recent articles are collected here.
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Copyright ©: 2013 Lester Jackson Ph.D.