The Judicial Republic?

A Branch Too Strong

After the decision in 2000 that handed George W. Bush the Presidency, the idea that America was becoming a "Judicial Republic" entered my mind. In 2010, when the Supreme Court decided that corporations have the same rights as people, but not the responsibilities, that notion only grew.

The current case regarding the "Individual Mandate" of the Affordable Care Act seems to settle to me that our judiciary has become not only too powerful, but too political. I believe that should the mandate be overturned, there will be chilling effect. Significant legislation along the lines of the New Deal or the Civil Rights Act; like a living minimum wage, will be unlikely to be proposed.

The path to this has been a path of resistance. It may have started with Brown v Board of Education, this decision, which in a sense made segregation unconstitutional may have been the legal leg for the Civil Rights and Voting Rights Acts to stand on.

The next group to have rights extended to them, through decisions like Gideon and Miranda,were the accused. The idea of making trials more fair, and allowing the accused the rights to be free from interrogation without representation could have been seen by reactionaries as an attack on their notion of justice.

Finally, women got a modicum of rights over their bodies. Griwold v Connecticut while a privacy case, gave women some rights to contraception. Roe v Wade, which gave women the ultimate over their own bodies, may have been the final straw to set reactionary forces and their plans into effect. This case is likely the unintentional result of a lengthy plan that had as its goal a case that could finally overturn Roe.

The case of the Individual Mandate may be an electoral "wake up" call to the long-term goals of those who have made slowing down, if not rolling back progress, The next president will likely be able to nominate one, if not two Supreme Court justices. With cases coming up regarding states' right's in regards to immigration, perhaps with the same connotation that term held 150 years ago, and challenges to a state's right to sanction marriages, a right delegated to the states by the Constitution. The power of this "Judicial Republic" may only grow. The question becomes, will we work to constrain it, or make sure that it's power is used to move America towards greater equality.

Comments 20 comments

Sooner28 4 years ago

The conservatives on the court are intellectually dishonest. They are corporate pawns. It seems like everytime there is a conflict between a regular person and a giant corporation, the corporation wins. They can spend unlimited amounts of money on elections, they don't have to face crimes they committed overseas. It's ridiculous!


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

The liberals on the court are intellectually vacant. They invent law out of thin air with torturous arguments that barely pass the fifth grade sniff test. They ignore the plain meaning of the Constitution - you know, the document they arer sworn to uphold - and decide issues on their own personal whims. This is ridiculous!


TeaPartyCrasher profile image

TeaPartyCrasher 4 years ago from Camp Hill, PA Author

Dave:

Yet a corp can have the rights of a person.


Peelander Gally 4 years ago

Nice article. And Dave, I can't say that any of the liberal arguments I've heard thus far are intellectually vacant. Comparing a minimum insurance requirement to forcing people to buy broccoli, as one of the conservative judges did, is totally moot and misses the points that are being argued entirely. Certainly it's important to ensure that the federal government doesn't unjustly excercise excessive control over us, but the general conservative response to this law is, in my opinion, the emotionally-based logic-ignoring one.


Headstrong Farm profile image

Headstrong Farm 4 years ago from Rhode Island

Very interesting Hub. This goes a little bit farther than my own thoughts on the matter have, so TY.

Dave: Sooner gave a couple of actual arguments to back up his assertion. Your mockery is intellectually vacant.


Sooner28 4 years ago

Lawrence v Texas 2003, Justices Scalia, Thomas, and Rehnquist all ruled that states could outlaw sodomy. Fortunately, they were defeated by the moderates and liberals on the court in a 6-3 decision.

I can't find the exact name of this case, but the conservatives all denied that there is a constitutional right to DNA testing for people who had been convicted before it became more widely used. People have been exonerated from DNA testing, but they seem to believe it's fine to deny people the right to even appeal. http://articles.cnn.com/2009-06-18/justice/rapist.... http://www.nytimes.com/2009/06/19/us/19scotus.html... It was a 5-4 decision.

And there is the Citizens United decisions, that allows corporations to spend unlimited amounts of money on political campaigns. This was also a 5-4 decision.

The Supreme Court also ruled in 2011 that women could not sue Wal-Mart for pay discrimination as an entire class, because there was no "glue holding the alleged reasons for all those decisions together." However, according to NPR, "The issue before the Supreme Court was whether female employees as a group could be certified as a single class, suing Wal-Mart at a single trial. Lawyers for the women introduced evidence showing that female employees held two-thirds of the lowest-level hourly jobs at Wal-Mart, but only one-third of the management jobs, and that women overall were paid on average $1.16 per hour less than men in the same jobs, though the women had more seniority and higher performance ratings." It's quite obvious there is plenty of glue there! http://www.npr.org/2011/06/20/137296721/supreme-co... 5-4 decision again.

As the Democrats told Chris Christie when he vetoed the gay marriage bill, the conservative justices' "feet are planted firmly on the wrong side of justice."


EinderDarkwolf profile image

EinderDarkwolf 4 years ago from Tempe, A.Z.

Very well written. I commend you on writing this as it's something that has crossed my mind more than once. Thank you for writing it!


twaggoner profile image

twaggoner 4 years ago

very interesting and well written, there is no doubt that the "appointed" members of the supreme court are nothing more than political pawns and have shown time and again that justice has nothing to do with their decisions. great work.


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

A few years back, in a ruling commonly known as "Kelo", the Supremes ruled that the government could force law abiding taxpayers to sell their property to someone else who would end up paying more taxes thus enriching local government. This ruling was met with such nationwide distaste that most, if not all of the 50 states have passed legislation saying, "Not in our state you don't." This is a clear violation of the Fifth Amendment which the Supremes blatantly ignored in order to foster big government liberalism.

Commonly known as McCain-Feingold, the Supremes declared that I, a decent law abiding taxpaying citizen, can only spend so much on political campaigns. Why? If I want to drop $50,000 on Michelle Bachman, why can't I. It's MY MONEY. This ruling is in amazing disregard for the First Amendment. It has had many very bad unintended consequences such as the rise of super PACs and was a horrible, ideologically driven decision that completely ignored the Constitution.

Regarding the Corporate decision (I don't know the reference), the Supremes are simply being consistent here. They have ruled previously that the government cannot restrict political contributions by Unions, why not also Corporations? Or are Unions privileged and Corporations evil? Restrict one you had also best restrict the other. BTW, you cannot hold a Union responsible for criminal actions either - and Lord knows there are plenty of those to go around.

I hesitated for several minutes before I continued with this one. I do not wish to turn this into an abortion debate, but am attempting to concentrate solely on the mechanism of the decision in Roe-v-Wade. You have to really feel sorry for poor Justice Brennan who drew the short straw and had to try to explain the Supreme's decision here. There was no Constitutional basis for it, no basis in law or precedence, so he was forced to mutter semi-incoherently about the "eminations from the penumbra of the Constitution" whatever the bleep that meant. And when that's the best you got, you know somebody is making something up out of thin air.


EinderDarkwolf profile image

EinderDarkwolf 4 years ago from Tempe, A.Z.


Headstrong Farm profile image

Headstrong Farm 4 years ago from Rhode Island

Awesome, EinderDarkwolf. ty for that.

Dave, I find it interesting that you, in your effort to bash liberals, prove the point of the above article which you seem to be trying to argue against. lol

As for your take on the abortion decision, you once again give your politically/religiously based opinion with absolutely no substance to back your argument.


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

I was fully aware that once I used the A-word you would not be able to see beyond it to the out and out silliness of the decision process itself. No surprise here. The rest of it was a response to you several comments above: "Sooner gave a couple of actual arguments to back up his assertion. Your mockery is intellectually vacant." So I gave you liberal silliness and intellectual vacuity.


TeaPartyCrasher profile image

TeaPartyCrasher 4 years ago from Camp Hill, PA Author

And what you getting in return, is being shown as a tool of the "%1" by folks like Sooner, etc.


Headstrong Farm profile image

Headstrong Farm 4 years ago from Rhode Island

Of course I can see beyond the abortion issue. If you'll remember, I'm not the one who brought it up, and I'm not arguing about whether I think that it's a good decision. What I said was that by pointing out any silliness of the Supreme Court's decision process in that case, you are actually providing more evidence that the substance of this hub is valid. Of course in your case, you seem to think that anything 'Liberal' is the worst kind of idiocy while everything 'Conservative' is rainbows and puppies.

The point of the Hub is that the Supreme Court should be above petty political maneuvering and there is evidence that is the furthest thing from where they are today, which you seem to be agreeing with.

BTW, I Googled your quote. lol Did you read the decision, or did you see that out of context in a blog somewhere and thought that it sounded good?


Sooner28 4 years ago

Dave,

You are drastically oversimplifying the Kelo decision. I wasn't familiar with it until you cited it, but after reading about it, I'm not sure what the problem is. The people were compensated, and EMINENT DOMAIN is part of the U.S. constitution. Within a capitalist framework, the decision makes sense. A business moving in would provide the residents with jobs. I know conservatives don't like to think about the public good because they are paranoid about socialism, but sometimes the public good is what matters.

I also find it extremely interesting you are defending a plutocracy. Apparently, you have no problem with money equating to influence over public officials. Our public officials can now legally be bought thanks to the Citizens United decision. Hello big oil and wal-mart! They are now going to run this country.

As for Roe v. Wade, that's typical conservative propaganda. Conservatives seem to believe first of all that a fertilized egg is equivalent to a full fledged human being. Second of all, women are not seen as equal to men, and therefore conservatives believe that they should not have rights over their own reproductive system. It's quite amazing.

I am also amazed that anyone would actually defend the Citizens United decision. Even John McCain had harsh words for the justices. "What the Supreme Court did is a combination of arrogance, naïveté and stupidity the likes of which I have never seen,” he pronounced from the dais. “It’s pretty obvious by the sarcasm from people like [Justice Antonin] Scalia and the absolute naïveté of people I voted for to be members of the Supreme Court, like [Chief Justice John] Roberts and [Justice Samuel] Alito and others, that they had no idea what political campaigns are about. They were incredibly naive.” http://www.nonprofitquarterly.org/policysocial-con...


TeaPartyCrasher profile image

TeaPartyCrasher 4 years ago from Camp Hill, PA Author

Sooner:

A plutocracy or theocracy seem to be the two goals that the American Right has in mind.

A Government of, by and for the "%1", or a version of the "Republic of Gilead"


Sooner28 4 years ago

It appears to be so. Instead of reducing the amount of money in politics, they are perfectly okay with increasing the amount. This doesn't even include bribes that aren't caught by the system!


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

In Griswold v. Connecticut,1965, Justice Williaom O. Douglas, the longest ever serving Supreme Court Justice and an FDR. appointee, wrote in part (emphasis added) “specific guarantees in the Bill of Rights have PENUMBRAS, formed by EMANATIONS from those guarantees that help give them life and substance.” In Grisowld, the Supremes struck down a Connecticut law that made purchase of contraceptives illegal.

Eight years later, in Roe v. Wade, Blackman wrote in part (emphasis added) "... found at least the roots of that right [privacy] ...in the PENUMBRAS of the Bill of Rights."

Since both rulings refer to reproductive issues, and the one obviously relies on the other, it is not hard to understand how the two have become merged together over time. Griswold is the case where the Supreme Court manufactured a right to privacy out of thin air using the words quoted above. Roe extended that manufactured right to include abortion.

BTW, it is not hare to find BOTH liberal and conservative judicial scholars that dislike the Supreme Court opinion (the written down part) for Roe. It is unusually long and of dubious legal merit.


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

Sooner,

I am shocked, shocked, to discover that John mcCain, co-sponsor of the first campaign finance travesty, find the Supreme Court wrong about corporate finance spending.


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

If Kelo were the law of the land, and thankfully it is not in Minnesota, then I am not secure in my own home. In Kelo, the city (I believe) forceably took property from one set of private citizens in order to sell it to another set of private citizens for the express purpose of increasing the city's tax revenues. That is a lot different from taking property to build a highway, a police station, a fire house, a hospital. I'm saddened that you cannot see the difference.

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