In September 1820, an aging Thomas Jefferson, writing in response to a book he had received from author William Charles Jarvis, corrected Jarvis’ “dangerous” view of the Supreme Court’s power, saying, “You seem … to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.”
Over the following 195 years, Jefferson’s words would prove prophetic. Not only has the Supreme Court seized for itself a degree of power unmatched by either of the other two branches of government, it has done so through a series of constitutional interpretations in which the court has decided its nine justices — and those Americans alone — are the only people qualified to truly understand the meaning of the supreme law of this land, at times elevating their own desires for social or political “progress” above the plain and historical meaning of the Constitution’s text and more than 200 years of jurisprudence.
In short, the Constitution means whatever the Supreme Court says it means, making the court — not the Congress, not the executive branch, not the states, and certainly not the people of the United States — the ultimate authority on virtually all matters. The American dream of a truly free nation governed by a supreme rule of law that is meant to reflect everlasting and unchanging natural rights — those rights the Declaration of Independence calls “inalienable” — is dead. We’re now a country ruled by the whims of an exceptionally small council composed of men and women who share very little in common with the more than 300 million people they rule over.
Never has the collapse of the nation’s system of checks and balances been clearer than during the past seven years, when the court has ruled in numerous cases it has the authority to define, alter or fabricate government powers never before known.
In National Federation of Independent Business v. Sebelius (2012), five of the nine Supreme Court justices ruled the federal government has the authority to punish Americans who do not purchase health insurance, because Congress has the authority to levy taxes — even though the Obama administration itself has routinely denied the government fine is a tax.
In King v. Burwell (2015), six justices declared the Affordable Care Act allowed for individuals purchasing health insurance on a federal Obamacare exchange to receive federal tax subsidies even though the plain language of the law specifically states such subsides are only available to those who purchase insurance on a state-established exchange.
And most recently, in Whole Woman’s Health v. Hellerstedt (2016), five justices struck down a Texas law attempting to require abortion clinics to be held to health standards commonly required of virtually all other health care facilities, ruling basic health care standards apparently cause an “undue burden” — but only for abortion clinics.
Writing for the dissent in Hellerstedt, Justice Clarence Thomas captured the feeling many constitutionalists are experiencing in the wake of these decisions: “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
And “disappear” it has. States have no power to create their own laws, unless the court approves of those laws. The people have no power to pass their own laws through referendums, unless the court approves of those referendums. And, when governments refuse to pass laws the court would like to see exist, the court demands their creation.
The court need not apply sound judgment, abide by its own previous decisions or protect the Constitution. It can do whatever it wants, whenever it wants. And who can stand in the court’s way? According to the Supreme Court itself, no one.
In ages past, units of measure were determined by a nation’s monarch, so a “foot” to one king could be shorter than the “foot” mandated by his successor. Such is the case with the Supreme Court and the Constitution today. For much of the past 228 years, America’s supreme law could be understood in a very limited number of ways, but now, long-held limits on government’s power have been wiped away whenever the court feels compelled to do so.
The republic is dead, but the “Oligarchy” Jefferson warned us about two centuries ago is alive and well.
Justin Haskins (firstname.lastname@example.org) is executive editor of The Heartland Institute.