Of the three branches of our federal government, the judiciary is the most misunderstood. Americans generally see the Supreme Court as a positive force in our society, as demonstrated by a Gallup poll showing higher approval ratings for the judicial branch than either the legislative or executive branches. However, few are aware of the Court’s many deplorable actions, such as mandating equal rights for illegal aliens and terrorists, prohibiting the airing of television ads criticizing the government, and forcing foreign law on Americans. Mark R. Levin, in his book Men In Black, illustrates how Supreme Court justices no longer defend the Constitution in their rulings but instead impose their personal views on the American public by fiat, leading to the shocking realities described above.
The main problem with an activist Supreme Court, according to Levin, is that its justices are appointed for life, so they are unaccountable to the public. Unlike members of Congress or the president, Supreme Court justices cannot be voted out of office no matter what the consequences of their decisions. Levin explains why the Founding Fathers set it up this way using evidence from their speeches and writings: They wanted to enable the federal judiciary to adjudicate laws impartially, insulated from popular sentiment. What has, in fact, happened is that the Court has abused its independence and trampled on the legitimate powers of the legislative and executive branches, making law instead of interpreting it. The Court no longer acts as a judiciary but as an oligarchy, substituting elite opinion for majority rule.
Levin devotes several chapters to areas in which the Supreme Court has overstepped its authority. For example, he discusses how the equal-protection clause of the 14th Amendment, originally intended to prevent the government from discriminating against people based on race, has been used to require the government to provide all the social welfare benefits it offers to legal residents to illegal aliens as well, and to afford due-process protections to suspected terrorists, even when they are not U.S. citizens. The Court has ruled that pornography, which is not speech per se, is protected by the First Amendment, but it upheld the constitutionality of the McCain-Feingold Act’s limitations on political speech — the very type of speech the Founding Fathers sought to protect when they ratified the First Amendment. In all these instances, the Court’s majority opinion was based on what five or more of the justices believed the text in the Constitution should mean, rather than what it actually means.
The perversion of the Supreme Court’s role in interpreting the Constitution described in Men In Black is particularly relevant to a recent case decided after the book was published. In Roper v. Simmons, a 17-year-old boy named Christopher Simmons bragged to his friends that he could commit a murder and get away with it because of his age. He then proceeded to break in to a woman’s home, tie her up, and throw her off a bridge into the river to drown. His death sentence was challenged and appealed all the way to the Supreme Court, which then ruled that all laws calling for the execution of juvenile murderers are unconstitutional. Justice Anthony Kennedy, writing for the majority, cited a “national consensus” against the death penalty for 16- and 17-year-olds. Apparently, Kennedy forgot that the reason for the Supreme Court’s independence from the elected branches of government is so it can separate itself from transient opinion and apply the law neutrally. Moreover, his evidence that 18 of the 38 states that allow capital punishment do not allow it for juveniles, hardly qualifies as a “national consensus.”
But perhaps the most disturbing part of the ruling was that “the overwhelming weight of international opinion” was an important factor in overturning the juvenile death penalty. Invoking foreign opinion in a Court decision subverts democracy because it allows people with different values and customs from ours, rather than our own people, to determine what policies are appropriate for us, running counter to the principle of self-government. Levin provides several examples of this dangerous phenomenon, such as Kennedy’s deference to the European Court of Human Rights in overturning Texas sodomy laws in Lawrence v. Texas.
Reading Men In Black, one learns that when judges substitute their personal predilections for the original intent of the Constitution in issuing rulings, they perniciously upset the balance of power among the three branches of government. When this happens, we have not a democracy — where the will of the people, backed by the Constitution, reigns supreme — but an oligarchy, where the people are subject to the whims of a few unelected tyrants.
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