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The Emperor's Clothes or a Cheap Tuxedo
The Myth of Hitler's Pope, Part I
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Embryonic Stem Cell Research Again
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"Don't Impose Your Religion on Me"
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Who Killed Jesus?
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You've Come a Long Way, Baby
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A Nasty Little Secret
Two Points of View on the Birth of Jesus
You Gotta Kill Them.  How Else Are They Going To Learn?
Perplexing Christmas Questions
How Do You See Christ Today?
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What is Conscience Anyhow?
Divorce of Love and Life
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Good Morality or Good Medicine
Generation-X'ers Smart in Every Way But One
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Herod and Pontius Pilate at the Polls
Hitler's Pope or Righteous Gentile?
The Unknown God
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Ideology Trumps Science, Reality, and Common Sense
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Infallibility and Error in the Church
Pilate Asked, "What is Truth?"
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New Killing Fields
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Many are Wed but Few are Married
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A Useful Lie
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Religious Persecution in the U.S.?
What Makes a Person a Person?
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Pearl of Great Price
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Sexual Morality Irrelevant in Judging Public Officials?
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SOSSLQ's, not POSSLQ's
Spoils of Splits
Why Attend Mass Every Sunday?
Is it All Right to Pull the Plug?
An Appeal for Intolerance
Topics Catechetical
A Voting Catechism
A Moral Guide to Voting
Vouchers: Has Their Time Come?
What Child is This?
What did they die of?
You are the Man
You may be a liberal if...
Get Rid of that Worthless Relative
Planned Un-Parenthood
Weighing Pro-Life Issues Prior to Voting

by Monsignor James C. Brunner

Faith Points

The Battle for the Court

 Because of the advanced age of some Supreme Court Judges soon there will be vacancies to fill in that body. Whenever vacancies occur we can anticipate the Mother of All Battles in selecting replacements. Senate Democrats have already signaled their intention of blocking any Bush nominee that might be pro-life. They are filibustering Bush nominees to the Circuit Court level: Charles Pickering, Priscilla Owen, and William H. “Bill” Pryor. Senate Democrats including some disgraceful, nominal Catholics are demanding absolute adherence to the doctrine of Roe v. Wade which nullified all state laws against abortion. Conscientious Catholics need not apply. Pro-abortionists have decided for the rest of us that their value system, which values prenatal human life at zero, is the only valid position.

 For the past fifty years the Supreme Court of the US has been engaged in what conservatives call judicial activism that has resulted in an Imperial Judiciary. Judicial activism has been defined as decisions by the court that depart from the text and logic of the Constitution and in effect devolve into legislating from the bench. Ideally the Court would be passive and interpret the law that is already there rather than create new laws.

 Here are some examples of judicial activism or legislating from the bench. The Civil Rights Act of 1964 stated expressly that there were to be no racial quotas, but in 1979 the Court interpreted the Act to permit quotas and preferences. I am not arguing here whether they are desirable, but that the Court interpreted the Act that forbade them in a way that allowed them. In the 2000 presidential election in Florida the State Supreme Court in a departure from the legislature’s laws on handling elections ordered a recount. On December 11, 2000 the US Supreme Court asked the Florida court what legal basis it had for ordering a recount. The Florida Supremes gave no answer but one week later they ordered another recount. The Florida Court’s own Chief Justice in a biting dissent to the 4-3 majority’s decision wrote that the decision “has no foundation in Florida law.” Here judicial activism almost caused a constitutional crisis that could have split the nation.

 The greatest example of judicial activism is the Roe v. Wade decision of 1973 which asserted a Constitutional right to abortion. Although the decision, based on privacy rights, admitted that there is no right of privacy mentioned in the Constitution it asserted that it could be found in the penumbras (shadows) or emanations of the Bill of Rights. Liberal Judges seem to work best in the dark. They mistake shadows for reality. This is the supreme example of legislating from the bench. The decision that has resulted in the deaths of 40 million unborn human beings was not based on anything in the Constitution.

 Chief Justice Brennan justified judicial activism by speaking of the “evolution of constitutional doctrine”, “a moving consensus”, and the assertion that “laws should transcend the written page.” This approach makes shifting sands of what should be a rock constitutional foundation. There are no constitutional rights if Justices pursue their own agendas and ignore the written text by inventing new rights and obligations according to their own ideology.

 Although judicial activism may on occasion produce desirable decisions it is ultimately a threat to liberty. Our constitution gives all legislative authority to Congress, but judicial activism in effect makes the Court a legislative body thereby diminishing the right of citizens to representation. Thomas Jefferson said,

"The opinion which gives to the judges the right to decide what laws are constitutional and what not, not  only for themselves in their own sphere of action but for the legislature and executive also in their spheres, would make the judiciary a despotic branch."

All legislative power in our system is vested in Congress and none to the courts. In judicial activism courts have become a superlegislature claiming authority to micromanage schools, prisons, hiring standards, and legislative apportionment. If legislators pass bad laws they can be removed at scheduled intervals. But if Judges make bad laws there is no redress since they serve for life and there is no place to appeal.

 The motives for judicial activism are not hard to find. If homosexual activists wanted to remove sodomy laws they could not have done this through the legislatures. So they resorted to the Courts. In 1986 the Supreme Court upheld sodomy laws. On June 26, 2003 they struck them down. What changed? Not the Constitution, but the ideological makeup of the Court. Liberals have preached that the precedents set by Roe v. Wade must be respected. In the case of sodomy laws precedent does not count. No legislature would permit the barbarism that allows mothers to have their unborn children torn from their wombs and killed at any stage during pregnancy, even as they are emerging from the womb. So the proponents of abortion went to the courts and bypassed the legislatures. The courts have become not instruments to protect our right to life but tools to promote a political agenda. As long as judicial activism is tolerated the ploy will work. All that is necessary is that one selects Judges of a particular ideology.

 The Senate Democrats have recently invited President Bush to “consult” with them about a Supreme Court nominee that they could approve, oblivious that the Constitution gives that prerogative to the President. But the written Constitution means nothing to liberals when it interferes with their agenda. I offer President Bush some gratuitous advice. He should not give a veto to the liberals. The liberals will oppose any nominee who does not toe their line on Roe v. Wade. If the liberals want a war the President should give them one.

 Appointing Judges who have respect for the Constitution may also improve society in other areas. Supreme Court decisions have thrown the commandments out of school and let condoms in. Religious dogma is out, but drugs are in. Moral teaching is out but teenage mothers are in. Prayer is out but pregnancy is in. Heterosexual marriage is out but Heather has Two Mommies is in. Moral absolutes are out, but abortion is in. S.T.D.’s (Doctors of Sacred Theology) are out but STD’s (sexually transmitted diseases) are in. The recent decision on homosexuality based on “privacy” will make it difficult for states to regulate incest among adults, prostitution, adultery, polygamy or even interspecies marriage. After all the Court has said that sexual activity in private is constitutionally protected. It will undoubtedly result in greater spread of AIDS and is the opening volley in equating homosexual “marriages” with heterosexual unions. The “privacy” penumbra apparently covers several hundred square miles. Undoubtedly liberal Judges left to themselves will find new and surprising rights there.

 Those interested in sound morals must join the battle for the Court. If only one side in a battle is firing its guns the other side is soon dead. Tell your Senators to support pro-life Judges.

 (Printed August, 2003)