Much is made of Chief Justice John Roberts’ efforts to defend the institutional integrity of the Supreme Court. All that the Chief Justice is defending is a broken norm of elite appeasement that has killed, polarized, and indebted the American people. The history of the Supreme Court for the last 80 years is one in which liberal judges make indefensible rulings and then hold conservatives hostage to those precedents under pain of violating their oath to uphold the Constitution. And Roberts has made clear his intention to ensure that this system continues unchallenged.
The Supreme Court lost its legitimacy as an impartial upholder of well defined constitutional principles in 1942. That year, the Court decided unanimously in Wickard v. Filburn that the federal government could fine Ohio farmer Roscoe Filburn for growing wheat on his own farm to feed his own animals. Roscoe had grown more than was permitted for his acreage and that could depress interstate wheat prices.
Article 1, Section 8, Clause 3 of the US constitution gives Congress the power “to regulate commerce… among the several states.” But the Court essentially said that the Commerce Clause doesn’t matter and that the feds can do what they want as long as they keep getting elected. The sitting President at the time was halfway through his third term, the Senate was 70% democratic and the House 60% democratic.
This is clearly unreasonable. But it is the status quo, with “conservative” justices Kennedy and Scalia happily using it to allow the feds to regulate homegrown marijuana in 2005, and the liberal justices and Roberts using it to uphold the Affordable Care Act in 2012.
In case anyone missed the point, the Court followed up that gem with the 1944 decision Korematsu v. United States in which they decided, 6-3, that American citizens who had never been to Japan and shown no sign of disloyalty could be forced out of their homes into internment camps.
Amidst recent handwringing about newer justices’ qualifications, no one remembers that Earl Warren had never been a judge at all before being nominated for Chief Justice while serving as the Governor of California. Warren is one of the most underrated men in American history and went on to serve as Chief Justice (while really remaining a politician) from 1953 to 1969.
Following Brown v. Board, he led the Court in handing down Cooper v. Aaron in 1958, which struck down Arkansas’ attempts to delay desegregation. Desegregation was necessary but the means chosen were to declare that any state legislator, judge, or executive who refused to uphold each and every Supreme Court ruling had violated their oath to uphold the Constitution.
In 1962 came Engel v. Vitale in which the Court invented the idea that “Congress shall make no law respecting an establishment of religion or prohibiting the free establishment thereof” banned voluntary, nondenominational prayer in public schools, a constant in American life until that time. As is common, the Court proceedings lied in identifying plaintiff Lawrence Roth as an atheist.
What about matters so fundamentally affecting a person as growing food on their own farm? What makes sex more fundamental and sacred to the Supreme Court than food?
I shouldn’t have to tell you what happened in 1973.
In 1977, Carey v. Population Services International struck down a New York law banning distributing contraceptives to those under 16. This was 10 years before the Court decided that the feds could coerce states into enforcing a drinking age of 21.
Again, why can a state prohibit a 20 year old from drinking a beer but not a 15 year old from receiving contraceptives?
One lesser known decision more “conservative” than “liberal” came in 1978, when the Court in Marquette National Bank of Minneapolis v. First of Omaha Service Corp unanimously neutered state usury laws by allowing any bank that was national in reach to ignore state interest rate limits, as long as their HQ was in a state without limits. This is the reason that many Americans today are trapped in a cycle of materialism and credit card debt. It is also a reason for the enormous power of big banks who swelled their financial statements on interest rate charges and related financial shenanigans.
What we have here is a Supreme Court that within just over 35 years granted the federal government unlimited authority over the economy, declared itself to be the American Constitution, enforced atheism in public schools, and blocked all states from enforcing most restrictions on contraception, abortion, and usury.
That was the ballgame. Beyond Korematsu (which if we’re being honest could easily recur in a future war) not a single one of those precedents has been seriously threatened. Nor has the general trend of appeasing federal economic micromanagement and banning social conservatism been reversed.
Ever since, Republicans have handcuffed traditionalists and social conservatives into voting for them while entrenching the established liberal order through cowardice and opportunism.
In case you were wondering, a 1985 case called Wallace v. Jaffree banned a school from informing students that prayer was allowed during a period of “meditation.” And in Santa Fe Independent School District v. Doe in 2000, the Court banned students from voting in favor of leading a prayer at the beginning of a school football game. And yes, two appointees from Prince Reagan voted in favor of that last one.
This is a broken system that makes 5 Supreme Court judges, usually from the same handful of law schools, able to dictate economic orders and novel social norms to every community in the country with no possibility of conscientious objection or later appeal.
It’s not the Chief Justice’s job to ensure broad popularity for the Supreme Court in an era so accustomed to leftism that any disagreement is flagged as bigotry. It’s his job to uphold his oath, which strangely survived Engel. We may pray that the Chief Justice one day realizes that the opinions of those with ivy league law school degrees and popular media careers is less important than obeying sound reason and being truthful in his promises to almighty God, whatever the costs.
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
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