By Senator Chris McDaniel
Now that President Trump has made his choice for the Court, choosing Judge Neil Gorsuch, which I think is an excellent selection, the brutal fight for his confirmation is about to begin. But just because we could soon control the Court’s direction, does not mean we should place all of our faith in it.
My friend, conservative author Daniel Horowitz, tweeted this shortly after the Gorsuch choice: “It’s very sad that this has become the single most important issue. Court never supposed to have this power. But we do the best we can.”
He’s correct. We need to reexamine our firm attachment to the judiciary, the belief that the Supreme Court is the final arbiter, or authority, in constitutional interpretation, as well as the grantor of rights and liberties.
On nearly every issue, we collectively hold our breath as we wait on nine unelected justices to emerge with their decisions, which have become, sadly enough, unchangeable, unless an altered Court takes its place and reverses the ruling. Other than that, Court decisions remain etched in stone — legal opinions which are more akin to legislation.
Whether we realize it or not, we have embraced a very dangerous system, that of a judicial oligarchy. As a people, we have unwittingly transferred sovereignty from ourselves to the Supreme Court.
Sovereignty is defined as “supreme power, ” and it resides in every society. In America, sovereignty is in the people, who have the final authority, and we exercise that power, not as a whole, but through our states.
As part of the system, it is Congress, acting with authority from the people, which sets national policy. And it is Congress, not the President nor the federal courts, which the Founders intended to be the strongest of the three branches. But today we no longer speak of the congressional role in policy-making, or in reversing Court rulings, as Congress did to reverse the infamous Dred Scott decision.
Nor does anyone speak of Congress using its authority to strip the Court of its appellate jurisdiction, a power the Constitution gives the legislative body and in which Congress once used to keep the Court from overturning its Reconstruction plans in the Ex parte McCardle case. In that case, the Court noted: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given in express words.”
Nor does anyone speak of the legislative authority to set the number of justices on the Court, which the Constitution delegated to Congress.
Nor is there any talk of a President, who is an officer of the government elected by the people of the states, taking a role in opposing the Court’s rulings, like Jefferson, Jackson, Lincoln, and FDR did on numerous occasions.
Thomas Jefferson, concerned because there is no electoral check on the Supreme Court’s power, warned us of the threat an unelected court posed. “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. 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.”
Today, despite Jefferson’s warnings, the Court has gained all influence over the course and direction of the country. As evidence, we hear politicians tell us daily that since the High Court has ruled, those decisions are “the law of the land.”
But it was not supposed to be this way, and we should stop acting as if the matter beyond dispute.
The Constitution is plain: “All legislative power shall be vested in a Congress of the United States.” Notice it says “all legislative power,” not half of it, is in the hands of the representatives of the people and the states. Such an approach is in keeping with the ideals of the constitutional republic the Founders wisely gave us.
This newfound judicial power is little more than a usurpation, or theft, of authority — the result of power hungry justices, but also politically calculated decisions from Congress and the White House. For it is easier for politicians to push blame and responsibility for unpopular issues onto the Court than it is to govern the nation. But with Congress abdicating their responsibilities, the Court has become much more powerful, and the people less so.
President Trump has made a wise decision, but we should not place blind faith in the courts. Instead, we must reform the system to keep power where it should always remain, with the people and not an unelected judiciary.