Ten Commandments or Ten Opinions?

Ten Commandments or Ten Opinions?

Ten Commandments or Ten Opinions?  Pick the former unless you want to wade through nearly 150 pages of dense U.S. Supreme Court legal jargon explaining why a Kentucky Courthouse may or may not keep a display of the Ten Commandments ("may NOT" carried the day, by a 5/4 vote of the justices) and why a Texas Statehouse may or may not keep its display of the Ten Commandments ("MAY" carried the day here, by a different 5/4 vote).

That's right. It took the U.S. Supreme Court ten opinions and nearly 150 pages in total to micromanage two of our State displays of the Ten Commandments, even though the First Amendment to the U.S. Constitutional applies to Congress, not the States: "Congress shall make no law respecting an establishment of religion ...."

To be sure, some of those 150 pages were written by justices arguing against the judicial power grab, but the length of the opinions and their strong language are just the latest indications that the majority of the U.S. Supreme Court is rowing increasingly far from the mainstream in its pursuit of "Evolving standards of decency."  Expect falls ahead.

The current conflict over cases that come before the Court and the threatened struggle over its next nominee, should one of the justices retire soon, as expected, is a very bitter one. That is because over time majorities of the Court have come to claim more power than the Presidency and Congress in a judicial coup against the Constitution that threatens to destroy the Republican form of Government the Founders gave us.

And what is this power that makes presidents quiver and congressmen quake? It is the Court's claimed right to be the exclusive and final interpreter of the Constitution.

This dogma of judicial supremacy is, like so many controversial Supreme Court doctrines, not found in the Constitution itself. Rather it was invented in 1958 in a U.S. Supreme Court case called ‘Cooper vs. Aaron,’ in which a majority of the Court claimed: "The federal judiciary is supreme in the exposition of the law of the Constitution."

The majority in ‘Cooper vs. Aaron,’ went so far as to rewrite history to legitimize their claim of power. Even though judicial supremacy had not been invoked in any prior Court decision, the Cooper majority none-the-less claimed it had been "a permanent and indispensable feature of our constitutional system."

The Founding Fathers were very much aware of the concept of judicial supremacy over constitutional interpretation - - but they rejected it strongly. In 1804, for example, President Thomas Jefferson said judicial supremacy would lead to despotism:

"The opinion which gives to the judges the right to decide what laws are constitutional ... not only for themselves in their own sphere of action, but for the legislature and the executive also, in their spheres, would make the judiciary a despotic branch."

Jefferson was not alone. Only a few years earlier, Congressman Joseph Nicholson, a former judge, warned even more emphatically what would happen if the judicial branch was permitted to have the final say over all constitutional questions:

Where is the charter which places the sovereignty of this country in the judge’s hands? What gives them the powers and the independence now contended for, and they will require nothing more; for your government becomes despotism, and they become your rulers.

"They are to decide on the lives, the liberties, and the property of your citizens; they have an absolute veto on your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation ....

"If this all be true ... the constitution is not worth the time we are spending on it.  It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance."

Sadly, the despotism President Jefferson, Judge Nicholson and other Founding Fathers warned about is upon us, threatening the integrity of the whole judicial system.

The federal branch that Madison regarded as "the weakest branch" has "overleaped the Constitution" to declare our laws "null and void at [its] pleasure" even if doing so requires "introducing at will the laws of a foreign country," as the Supreme Court has done in declaring sodomy to be a constitutional right and in declaring unconstitutional the execution of 17-year-old murderers. The Court has issued other controversial decisions that cite international laws or foreign moral standards rather than the text and meaning of the U.S. Constitution as it was delivered to us by the Framers.

Ironically, although nearly all of the more controversial Supreme Court decisions have struck down laws passed by the people or their representatives (e.g. Roe v. Wade, which ended abortion laws in all fifty states), the judicial activist majority of the Court often does its work in the name of "We the people" or of "Democracy."

In the recent majority opinion striking down the display of the Ten Commandments in the Kentucky courthouse, for example, Justice Stevens wrote that the Court should "expound the meaning of constitutional provisions" in part by considering "our Nation's democratic aspirations."

As large majorities of Americans actually oppose so many of the Court's recent decisions, however, it's clear that the only "democratic aspirations" the majority of the Court has is mind is what Justice Scalia in dissent called the "personal preferences" of the "dictatorship" of a shifting Court majority.

Whether one calls it "despotism" or "dictatorship" or "democratic aspirations," one thing is clear: By advancing what Justice Thomas called in the Texas case their "judicial predilections" above the text and history of the Constitution, politically motivated majorities of the court are undermining the integrity of the judiciary and the foundation of our country.

If such is the consequence of man's law reigning supreme, I'll pick the Ten Commandments over the Ten Opinions any day.

(Tom Parker is Associate Justice of the Alabama Supreme Court.)