The Supreme Court Exposed

 What Ho! A Federal District Court is attacking the Supreme Court?  Well, it is about time someone showed a little spine.  Andrea Widburg, in a post at the American Thinker has the story entitled  A Federal Appellate Judge Challenged Supreme Court Infallibility.

United States Court of Appeals for the District of Columbia Circuit, nobody but the parties involved cared about the issues in the case. It became noteworthy, though, because Judge Laurence Silberman used the dissent, not just to disagree with the majority’s ruling, but also to warn against the danger of a national media that is completely allied with the party controlling all of Washington D.C. However, I find the case even more exciting because it attacks the notion of Supreme Court infallibility.

I am always a little appalled that whenever an appointee to the Supreme Court is undergoing Senate hearings, the Democrats in particular are concerned that the appointee has a proper respect for stare decisis, the Latin term for allowing judicial precedent to guide future rulings. The idea grows out of English Common Law, where there is no statute to rely upon, then judges would look to similar cases to see what had been done before this case. A proper use of stare decisis would require that the Justices weigh past rulings, while going back to the Constitution itself to find the best theory to use in each case. To do such is to acknowledge, as does Silberman, that all rulings are made by mere men.

Although Silberman acknowledges the difficulty inherently in overruling “landmark” cases, he has come to see the 57-year-old New York Times opinion as “a threat to American Democracy. It must go.” And then Silberman goes into overdrive defending the Constitution.

He makes plain his disdain for Justice Kennedy’s contention that “criticism of the Court is tantamount to an attack on the Constitution.” Instead, “I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb.” It’s that kind of dissimulation that is “the real attack on the Constitution.” Indeed, “[t]he notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate.”

What Silberman has written is incredibly important. The Supreme Court, unlike the Pope, is not God’s representative on earth (at least for Catholics). It’s a collection of lawyers, with those from the left being highly politicized. These same leftist lawyers pretend that they are, in fact, infallible, making their decisions indistinguishable from the Constitution itself – and as unassailable.

The emphasis is mine, but I think Widburg has touched on an important flaw in our understanding of the Constitution. Ever since Marberry v. Madison (1803) the Court has grabbed power not granted to it by the Constitution itself. It has thus seen itself as the "Council of Last Resort" but has in the last hundred years taken even more power, as a "Council of Last Revision." Silberman is right to call this latter out as illegitimate.

The Left has gotten a lot of what it wanted by going to court.  They have done so because their program is quite unpopular.  Courts, having been trained by the Left,  have agreed with the Left most of the time.  But contrary to the notion of "settled law" these court rulings have invariably left conflict in their wake.  Too much that should have been settled by State politics has been instead settled by the national Supreme Court.  We need to return to the notion of these United States rather than the United States.  The one is a confederation of sovereign States, the other is a homogenized nation calling itself the United States.  But that is not how it was founded.

I suspect we have fallen into this trap in trying to extricate ourselves from the last effects of Jim Crow.  But we seem to have thrown out the baby with the bathwater.