Washington, D.C. The
U.S. Constitution instructs Congress to design and adopt whatever federal
laws the country needs. The judiciary is to referee actual cases arising out
of actions or omissions by the legislature, the executive, or the states.
In the 1803 case of Marbury versus Madison, the Supreme Court asserted its right
to pass binding judgment about the interpretation and application of the Constitution.
In the 1819 case of McCulloch versus Maryland, moreover, the Court asserted its
right to decide what meanings and consequences are implied in the language of
the Constitution.
Judges do not and cannot write statutes, but by interpreting the Constitution,
the judiciary shapes existing laws and may even make new law. Since Congress
did not delimit the Court’s own determination of its powers and all too
often defaulted on its constitutional obligation to make all “necessary
and proper” laws, the Supreme Court has become a powerful lawmaker, sometimes
even more powerful than the legislative branch. The Supreme Court has ruled on
crucial issues of national importance, such as civil and economic rights, issues
that in other democracies are decided by the people’s elected representatives.
When Congress could not find a majority to end racial segregation in public schools,
exasperated African-American parents in Topeka, Kansas, sued until the U.S. Supreme
Court made the integration of public schools the law of the land in Brown v.
Board of Education (1954).
When Congress was unable to establish by law whether or not, or under what limitations,
abortion was to be legalized, the district attorney of Dallas County, Texas,
challenged the state’s anti-abortion law all the way up to the Supreme
Court. In 1973, he obtained the landmark 7 to 2 decision in Roe v. Wade that
legalized abortion in the first trimester of pregnancy. The majority of the justices
made this decision even though the question of whether life begins at conception
or at birth is unanswerable on constitutional grounds.
The biological as well the moral issues involved in abortion law are so fundamental
that in a democracy they ought not to be decided by nine appointed justices but
rather by the people and/or their elected representatives. In Roe v. Wade, the
Court arrogated to itself the competency to go beyond interpreting the Constitution
and create new law. It did so, however, only because Congress failed to decide
the issue.
A court that can impose federal rules on abortion surely can also rule on any
other national dispute that Congress is unable and/or unwilling to settle. This
is likely to happen again if Congress fails to define the rights of homosexuals.
The framers of the Constitution made the three separate branches of government
coequal; but Congress is the first among them, designed to make the crucial political
decisions that shape the country’s moral, legal, and economic course. After
these decisions have been implemented, the courts assume the equally important
task of adjudicating law violations and legal controversies.
Because Congress failed to settle some of the most contentious political disputes,
particularly on civil rights, the courts have become ever more politicized in
their efforts to make the rules for which plaintiffs asked. In view of Congress’ inability
or unwillingness to settle the question of the legality or illegality of abortions
by statute or constitutional amendment, the President and members of the Senate
instead fight to get judges on the federal bench that are known to favor the
outcomes they prefer. Neither lawmaking by appointed judges nor filibustering
for or against their appointments are shining examples of representative democracy.
These practices were not brought about by the Founders but by stymied Congresses
and activist judges.
Maybe our leaders in the White House and on Capitol Hill ought to ponder their
unseemly brawls over judicial appointments when they
offer our democracy as a model to other nations.