On the Separation of Powers - Part 2

Ron Paul has filed yet another important report highlighting the manifest misunderstandings attending the role of the federal judiciary in America.

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These sentences explain the reasons the judicial nomination process occasionally devolves into an outlandish spectacle include:

• Federal courts ... have become unelected, unaccountable purveyors of social policy for the entire nation. Bitter partisan fights over Supreme Court nominees are inevitable simply because so much is at stake.

That is simply the truth. Of course that doesn't answer the question why? As in, why have the federal courts become purveyors of social policy for the nation? Somebody else has written about this reaching a similar conclusion, although I don't remember who and I can't find where, but I think there are two primary reasons this is the case.

The first reason goes back to Marbury v. Madison (at least I think that is true; remember, you are reading an analysis of the structure and history of the government of the United States as written by a person who earned a C- in Constitutional Law in law school). You see what happened was:

The people who put our government together generally had an agreement that there would be checks and balances whereby: (1) the extent to which the group that spends far too much time writing laws could screw things up for the general populace would be limited by (2) The Big Dog at the top of the heap who can decide whether to reject laws presented and (3) the group that was supposed to compare the substance and breadth of the laws enacted by the busy-bodies and the implementation and enforcement of those laws by The Big Dog to the limitations imposed by the founding (constating?) documents of the country.

But Supreme Court Chief Justice Marshall understood that out of that scrum whoever got to go "last" would have something of a dominating position. Recall the aphorism: he who laughs last laughs loudest. So in Marbury, he authored an opinion basically seizing the last laugh for the judicial branch. And in some bunch of other opinions that I can't identify (C-, remember), the federal courts decided to ignore the Tenth Amendment to the Constitution to the degree that many issues of local or state concern have been federalized during recent (and not so recent) decades.

(As an interesting (from this author's perspective, anyway) sidenote to this discussion, here is what current Chief Justice Roberts said during his confirmation hearings in response to a question about whether he thought Congress could, constitutionally, limit the jurisdiction of the federal courts by specific legislation (the relevant portion of the transcript is here):

"Well, I don't think -- on the question of
legislative attempts, I think my view is
the same now as it was 24 years ago, which
is that these are -- it's a bad idea. It's bad policy.

I was talking about the other question about
whether it's constitutional or not. And on that,
of course, I don't think I should express a
determinative view because, as you know,
these proposals do come up and one may be enacted.")

But I digress ...

The point of all this is that, rightly or wrongly, the federal judiciary is political. In no small part because the federal courts generally get the last say. So, one way to look at this is ... when a group of folks interested in living a particular way or having a particular rule be the law of the land lose their fight in one of what have now become the lesser venues (federal or state legislatures, federal or state regulatory agencies, state courts) , they take their fight to the federal judiciary. Accordingly, these groups of folks have a keen interest in the identity and ideology of the people who will be there to listen to them, to "hear their case" as it were.

P.S.
This post was written before Harriet Miers withdrew her name from consideration for a Supreme Court position. That is an interesting topic in its own right. I'm annoyed at people asserting Ms. Miers wasn't qualified. Just because she wasn't a judge before. As Ron Paul noted in the article linked above, that's ridiculous.