Is the Supreme Court out of control?
... and, if so, what can President Trump do abut it?

June 22, 2020
The Supreme Court is out of control

With one exception, the Supreme Court causes supreme problems when it oversteps its bounds, as it has done regularly since Trump's election. It did this most recently when it held that, although President Obama illegally instituted his DACA program, President Trump must jump through a series of arbitrary administrative hoops to walk it back. Daniel Horowitz says that there is a way to end the Court's unconstitutional power grab.

Going back as far as 1857, with one exception, the Court's major public policy decisions have been constitutionally invalid and had disastrous outcomes. Dred Scott denied African-Americans citizenship, Plessy v. Ferguson enshrined segregation, Korematsu v. the United States erased the rights of Americans of Japanese descent, and Roe v. Wade created an imaginary constitutional right to abortion that created a 47-year-long schism in America that perverts every presidential election. Each time, the Court waded into areas that are the preserve of the states and Congress, making up rights as it went along.

Only once did the Supreme Court improperly insert itself into a public policy issue and get away with it. That was 1954's Brown v. Board of Education, a morally but not legally correct decision. Its virtue lay in how it focused America's attention on the virulent racial hatred emanating from what many Americans then considered a backwater region. Footage of young blacks having to go to school under armed guard while running a gauntlet of screaming white citizens shocked the nation's conscience and gave a national impetus to the Civil Rights movement.

Buoyed by its moral success and practical effectiveness in Brown, the Supreme Court has been on a roll since then. Leftists are activists by nature, but even the conservatives cannot resist the heady power of being unelected, life-term legislators.

Daniel Horowitz writes that the Executive Branch has recourse against an out-of-control Judiciary.
https://www.conservativereview...ial-supremacy-heres/

His argument is compelling because he denies the premise that the Court's actions have any legitimacy:

"So Trump should defy the court, right?" I've been asked.

No. The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts "must ultimately depend upon the aid of the executive arm for the efficacy of its judgments." Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it's following the law being defied by the judiciary.

The Supreme Court may protect an individual's rights because, even if it errs, we prefer it to err on the side of the individual against the government. The DACA decision (like many recent decisions) is different:

In this case, the court is jumping two steps by demanding Trump not only refrain from deporting illegal aliens, but affirmatively use the tools of government to grant resident documents to people whom our law explicitly prohibits from having them.

The effect of this two-step jump, says Horowitz, is profound and unconstitutional:

[T]he court has no power to demand the executive branch take action contrary to law and certainly no way to enforce it. The same way a court can set aside a policy or law it feels it is unconstitutional for its purposes of a ruling in a single case, the executive branch has the same obligation to set aside capricious court rulings when they violate the Constitution and intersect with its more robust powers.

Once Horowitz establishes that the Court is acting unconstitutionally (and he offers an in-depth historical analysis to support this conclusion), he offers a workable solution:

It's not like the courts created a fundamental right for illegal aliens to obtain Obama's amnesty. At least not yet. They created a convoluted argument that Trump has to issue a more robust decision-making process with justification for the policy that passes muster with the courts. Trump should go back and issue the ruling again, but this time publicly draw a line in the sand and call his shot. He should have Attorney General Barr cite chapter and verse of statute and the Constitution and pledge to uphold the law no matter what and state that he will not even send down DOJ lawyers to court to indulge this nonsense. Presidents of both parties regularly assert separation of powers when ignoring congressional subpoenas. The courts are certainly not more powerful than Congress.

The same tactic should have been used with the census. A census is not written by the judiciary; it's written by the Department of Commerce. The administration has every right to place a citizenship question on the form, and even Roberts in his insane opinion from last year agreed that it would be following the law. If individuals don't want to fill it out and are subject to federal prosecution, then the courts could always decline to convict them. That is how separation of powers and decompartmentalism work.

The president has no choice. This is not just about amnesty. This is about everything he has done during his presidency. Whether it's numerous other immigration policies, the census, or environmental and energy regulations, the courts are mandating a continuation of Obama's presidency. They are saying that Trump cannot get rid of anything Obama did unilaterally.

Unless Trump acts to rein in the Supreme Court's unconstitutional power grabs, the Court will have relied on the goodwill engendered by Brown to become the most powerful — and completely unaccountable — branch of American government.

Read more: https://www.americanthinker.co...l.html#ixzz6Q7m61YZ9

Not sure about the court but pretty sure the Chief Injustice is out of control

quote:

Is the Supreme Court out of control?

Sadly yes.

I was always confused on why so many decisions in politically charged cases are so polarizing.
You would think an honest judge would simply rule on the law and not their own persuasion.
I realize you could say this about both sides but in reality it is blatant on the left side and some on the right side just want to pander.

quote:

Originally posted by nhtagmember:
Not sure about the court but pretty sure the Chief Injustice is out of control

Yep, which is why I was leery of Kavanaugh since he was also from the beltway also.

Robert's play seemed to be he doesn't want to out himself as a liberal so he plays this "didn't dot the i's and t's game.

Yep. Agenda and power. Maybe they are being controlled by someone or someones.

quote:

Originally posted by Aquabird:
Yep. Agenda and power. Maybe they are being controlled by someone or someones.

Oh, look, a conspiracy theory.

Rule by judges has been tried and failed historically. Trouble is humans are rarely driven by true principles. Typically they allow conflicting interests, cultural decay and personal compromise to govern their judgement. The best chance humanity has of enduring liberty and justice is to continually teach true principles to the young and hope for the best. We can’t even agree on which principles are true and which ones are false any more

Never, ever leave the decision in the hands of the judges, always finish it before the bell rings...

quote:

Originally posted by Aquabird:
Yep. Agenda and power. Maybe they are being controlled by someone or someones.

I wouldn't go so far as to say a conspiracy, however I would postulate that the parties in the Senate and house have worked the system whereby they just don't pass laws that a POTUS has pushed in his campaign.

They want these to become EO's, where their constituents challenge the EO's in court that favor their views at a lower level and then hope it stays, or gets to SCOTUS. Both sides play this game.

It abdicates the responsibility for the action to POTUS, allows congress to claim they had nothing to do with it and pushed the decision on the EO into the courts, allowing it to become a law or be eliminated by SCOTUS.

Basically what the article is saying... at least my take...

Personally, I believe giving 'any' human being a lifetime appointment to a position of power as great as the SCOTUS is asking for trouble. We're seeing that on virtually every case SCOTUS reviews both from the left and now from the right in Roberts. And make sure to add Kennedy's wet dream case on gay marriage/14 amendment to the list of SCOTUS overreaches.

Horowitz at least poses an interesting alternative to allowing the court to continue to run rampant over the law, the constitution, and their oath. Day by day Washington (all of it) becomes more and more dangerous to the future of this country.

quote:

Originally posted by HRK:
It abdicates the responsibility for the action to POTUS, allows congress to claim they had nothing to do with it and pushed the decision on the EO into the courts, allowing it to become a law or be eliminated by SCOTUS.

You've seen something very similar coming out of Tallahassee over the past ten years in that the legislature is so weak and corrupt they instead push more and more onto referendum for the majority (or mob) to decide rather than to govern as they were elected to do. It's like a a virus spreading throughout all of government completely removing all evidence of courage and ethics.

Any Supreme Court that rules consistently along party lines is broken.

When the judicial system believes the BoR is obsolete and dated, then they are no longer serving the interests of the populace.

Out of control? Hardly.

Doing things some of us don't like? Always.

So it goes.

Or, at least, no more out of control than the rest of the government and world.

I would argue that if they are making decisions for which we could understand the logic and reasoning although the decision itself is not palatable, it's on thing.

But when decisions are made that don't pass reasonable checks for logic and reason and are clearly based on some emotional bias, they are out of control.

Because the majority share an common opinion doesn't make something right. We no longer hold certain truths inviolate.

So the Supreme Court with a Republican appointed majority and a Chief Justice appointed by Trump is "out of control"? Maybe if a court this conservative disagrees with you than you are wrong? Nah, it must be another deep state conspiracy that once again tricked Trump into appointing these people.

quote:

Originally posted by Fundman:
So the Supreme Court with a Republican appointed majority and a Chief Justice appointed by Trump is "out of control"? Maybe if a court this conservative disagrees with you than you are wrong? Nah, it must be another deep state conspiracy that once again tricked Trump into appointing these people.

Chief Justice appointed by President George W. Bush, 4 conservative justices 4 liberal justices and a Chief Justice who flips back and forth depending on factors and issues.

quote:

Going back as far as 1857, with one exception, the Court's major public policy decisions have been constitutionally invalid and had disastrous outcomes.

The author is understandably emotional due to the recent decisions, but if he really can only think of one major public policy decision in 14 decades that has been Constitutional and didn't cause disaster, he's about 7 spark plugs short of a working V8.

It's not good writing technique to start off an essay with obviously incorrect assertions.

The country has become ungovernable, question is WTF are we going to do about it? It's time to get off our ass, the political class will not step up to the plate

quote:

Originally posted by Fundman:
So the Supreme Court with a Republican appointed majority and a Chief Justice appointed by Trump is "out of control"? Maybe if a court this conservative disagrees with you than you are wrong? Nah, it must be another deep state conspiracy that once again tricked Trump into appointing these people.

It doesn't matter who appointed them... they all seem to move to the left after they are on the bench (except for Scalia and Clarence Thomas).
Some call it the "Washington cocktail circuit" but it's being surrounded by liberals all of the time. It's hard not to succumb to the pressures of the Washington swamp.

As for the "deep state" tricking Trump into appointing these people... Nixon, Reagan and Bush all made similar appointments.

The question is, where do they get the list they choose from?
Even conservative groups are influenced by funding from the left.

The Big Con – The Heritage Foundation and the Federalist Society are Being Funded by Google?...


The Big Con.

What Senator Josh Hawley called the fraud of “the conservative bargain” is taking on an entirely new light thanks to the work of The National Pulse in what should be a game-changing expose’ on just who is funding, or should we say ‘controlling’, key aspects of expressed U.S. conservatism.

President Trump, in a tenuous alignment with Senate Majority Leader Mitch McConnell, has previously said the list of judicial nominees presented, considered, nominated and confirmed, were assembled and vetted by two specific groups: The Federalist Society and the Heritage Foundation; both of whom claim to hold conservative outlooks.

As a result, it’s a little more than concerning to discover that both organizations are being funded by the ultra-left wing Google ideology. Yes, the same Big Tech outlet currently working on an advanced directive to block, control, censor and eliminate conservative speech on-line, is financing the organizations who claim to support conservative speech.

That revelation should get some attention…. but it won’t… because the same conservative pundits who are in place to get the attention of conservative Americans, and ultimately control what outrages should garner the attention of conservative thinkers, are financial benefactors of the same organizations under the control of their left-wing financing.

Think about that carefully.

Let that sink in.

Things starting to make sense now?

The standing ovation at CPAC for Paul Ryan’s omnibus spending making sense now?

How many conservative pundits hang the shingle of their bona-fides based on their association with The Federalist Society, The Heritage Foundation, or The CATO institute?

Do we really think those well known conservative voices, radio hosts, television pundits, booksellers and publication authors would now be part of an expose’ of admission? Will the crowd of conservative voices stand jaw agape to discover their bank accounts are actually full of Google and Big Tech money? Doubtful; it would be against their interests.

You can read the FULL LIST of which conservative groups are being funded by Google and Big Tech HERE. And don’t skip the pearl-clutching justification from the Heritage Foundation at the bottom of the article.

Methinks they doth protest too much.

Senator Josh Hawley is right, the “Conservative Bargain” is based on a fraud...

https://theconservativetreehou...ng-funded-by-google/

Senator Hawley speaks on the Supreme Court's Bostock Decision

More likely when they've reached the pinnacle of their profession, and are appointed for life, they feel no need to conform their decisions to the politics of the people who put them in that position.

quote:

Originally posted by Aquabird:
Yep. Agenda and power. Maybe they are being controlled by someone or someones.