Joseph Sobran’s
Washington Watch

Controlling the Court

(Reprinted from the issue of July 10, 2003)

The U.S. Supreme Court’s affirmative action rulings were still being hotly debated when the Court surpassed itself, later in the week, by striking down a Texas sodomy law as unconstitutional. This of course will have the practical effect of invalidating all sodomy laws in the United States.

The majority opinions in the Court’s affirmative action cases were written by Sandra Day O’Connor, appointed by Ronald Reagan; the majority opinion in the sodomy case was the handiwork of another Reagan appointee, Anthony Kennedy. No liberal president could have picked a worse pair. Liberals, naturally, see both these justices as “moderates.”

Robert Novak reports a rumor that President Bush will name O’Connor chief justice if William Rehnquist retires soon, as expected. She should be confirmed without objection by the Democrats. If Bush chooses conservatives for other vacancies, it will be a different story. The courts are the Democrats’ last hope, and they are prepared to fight, filibuster, and do whatever it takes to keep them a liberal stronghold.

Kennedy’s opinion in the sodomy case was marked by the woolly philosophizing that has been his trademark. It was full of vague rhetoric about “dignity,” “autonomy of self,” and “transcendent dimensions” and devoid of specific references to the Constitution, apart from a few brief allusions to the Fourteenth Amendment. It spoke of an “emerging awareness” (whatever that may mean) that private sexual acts, sodomite and otherwise, are constitutionally protected.

Kennedy even proudly quoted his own risible dictum in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Evidently the Texan sodomites were arrested for defining their own concept of existence in a rather unusual manner. In a bitingly witty dissent, Antonin Scalia (also a Reagan appointee, be it said) mocked Kennedy’s “famed sweet-mystery-of-life passage,” which he said threatens to become “the passage that ate the rule of law.”

Liberals can’t stand Scalia’s wit. The normally cool David Broder wrote angrily in The Washington Post that Scalia’s bad manners disqualify him as a possible chief justice, and Maureen Dowd of The New York Times called him a “stegosaurus,” and a “homophobic” one at that. (As any paleontologist will tell you, homophobic stegosauruses were the very worst kind.)

Scalia, in short, does not play well with other children. He noted that the Court has “taken sides in the culture war,” which is exactly right. The sodomy ruling had no more to do with the Constitution than the Court’s abortion rulings have; once again the Court has merely adopted a trendy view shared by the chattering classes and called it the law of the land.

These rulings would have astonished even the men who framed and ratified the Fourteenth Amendment. That amendment, badly drafted and dubiously ratified in the first place, has been perverted into an all-purpose warrant for judicial power, allowing liberal federal courts to strike down virtually any law they dislike. In this case, the Court found that sodomy laws “discriminate” against “homosexual persons” as a “class” or “group.” They do not. They forbid specific acts, regardless of whether the violator chooses to define himself as a “homosexual.”

Homosexual activists were delighted by the Court’s decision, seeing it as an important step toward what they regard as “full equality,” including same-sex marriage — exactly the effect Scalia predicted in his dissent. The Constitution has become quite useless in foreseeing which way the Court will go in the future; the liberal zeitgeist is a much surer guide.

The decision outraged and alarmed conservatives, who quickly called for a constitutional amendment defining marriage to prevent homosexual unions from achieving legal status. It makes you wonder if conservatives ever learn. Since when has the Constitution stopped liberal courts from doing as they please?

Why blame bad constitutional law on the Constitution? The problem is the courts, not the failure of the Framers to envisage every possible abuse of their handiwork. Must we amend the Constitution every time a Kennedy twists it to mean something it manifestly doesn’t mean?

Besides, the sodomy ruling wouldn’t be reversed by putting a definition of marriage into the Constitution; on the contrary, such an amendment would presuppose its legitimacy. There has to be a better response.

And there is, though I don’t expect conservatives to make it. When Roe v. Wade was issued, conservatives made the mistake of accepting it as legitimate and proposing such “solutions” as new amendments. The proper response would have been to demand the impeachment of the justices who had voted to usurp the powers reserved to the states under the Tenth Amendment. If the power to protect the innocent from violence isn’t such a power, what on earth is?

In the sodomy case too, the Court has flagrantly exceeded its authority. If usurpation isn’t grounds for impeachment, we may as well burn the Constitution.

Amending the Constitution is a cumbersome process, far too difficult to make it a useful corrective to usurpation. That’s what impeachment is for: to remove from office those who violate their own oaths to uphold the Constitution. It isn’t a criminal proceeding; it’s merely a measure to protect the people from those in power.

We are constantly told that the United States was founded to secure democracy or equality or some such lofty purpose. The truth is that the Union was supposed to be a federal republic, as opposed to a monarchy or hereditary oligarchy. Its rulers would be public servants who, unlike kings, should never be sure that their jobs were safe. The power to impeach would stand as a constant reminder to them to respect the limits of the law.

Public servants, of all people, should never enjoy job security in a republic. Both elections and impeachments are supposed to be guarantees against the virtual ownership of power. Impeachment should therefore never be regarded as a drastic emergency measure; it should be as normal as any power to hire and fire.

Unfortunately, it is so rarely invoked that it has come to seem an extraordinary last resort. It has seldom been used against presidents, and never against justices of the Supreme Court. Is this because it is seldom or never warranted? Hardly. As a result, we have been defenseless against the judiciary, which doesn’t even have to worry about elections. It has enjoyed virtually perfect job security, and it has behaved accordingly. The neglect of the impeachment power has only strengthened the courts’ natural temptation to use their power irresponsibly.

So once again we have been shocked, but not surprised, by the Court’s bold affront to the rule of law. To read Kennedy’s opinion in the sodomy case is to hear the confident voice of sheer power, assured that it will face no consequences for whatever it may choose to say, knowing that even its whims have weight. But precisely because the High Court doesn’t have to face elections, it should have to think about impeachment.

At this point it’s unlikely that an attempt to impeach justices of the Court could succeed. But unless the subject is at least raised, it will be even harder to impeach in the future. And even a reminder of the possibility might deter the justices from taking their constitutional duties as lightly as they are in the habit of doing.