I am finally convinced that the “Separation of Powers” in the United States Constitution and the assignment of duties by each branch has been stood on its ear in the last twelve months or so. The “checks and balances” intended by the framers of the Constitution envisioned three branches of government, Article I (congress), Article 2 (executive branch) and Article 3 (judiciary). Each branch was given specific duties and oversight to a certain degree over the other two branches. The problem has become that the Article 3 judicial branch has overstepped its bounds and is now presuming to have legislative powers.
Originally, the Federal Judiciary was empowered to review legislation from Article I congress and executive orders and regulations from Article 2 executive branch to ensure that these laws and rulings complied with the Constitutional protections granted to citizens. Any lawyer that has taken Constitutional Law I or II classes understands these principles. This has been an uneasy structure, mainly because the appointment of Federal judges and appellate justices is a political process and as we have seen this year can have a profound effect on the functioning of the government in general.
In the past 100 years or so we have seen more and more political activism by Federal judges. However, in my 45 years of practicing law I cannot remember the Federal judiciary being more politically active on a wide range of fronts. It seems that the Article 3 branch has decided to control the other branches based on non-constitutional issues but rather the political correctness of the day. I do not mean to write a legal memo on this point (unless paid), but merely indicate a trend that the lawyers need to be aware of based on my observations over my 65 years.
Probably the first indication that the judiciary was willing to get into the political arena was the ruling that the Civil Rights Act of 1964 was authorized by the Commerce Clause of the Constitution. That was a stretch in my opinion, but a needed ruling to frame the social and moral compass of our society. I am certain that the “Founding Fathers” could not envision the way the Constitution has been politicized two hundred years later. Sometimes the judiciary has to be creative to support obviously moral decisions. However, as we have seen over the last year, this can become problematic. I think the “Founding Fathers” are probably twirling in their graves over whether the courts ought to be ruling on who bakes a cake for whom. It is a slippery slope.
The litigation that is coming out these days is proving my point. Twenty states have sued the Federal Government to abolish Obamacare. States are suing the Federal Government because they don’t like executive rulings or lack of Congressional action. Three Muslim teenagers in NY sue because they had to take off their hajibs for a mugshot. For anyone that is watching, it is obvious that more and more people and authorities are turning to the courts to legislate. This is unconstitutional.
The problem is that the judiciary has invited this issue. Political activism has long been avoided on the bench until now. The battleground has shifted from the legislative process to the judicial arena. God help us. Judges go where no man has gone before, based on their conscience and their desire to do good. However, that is not what judges are supposed to do. They are supposed to apply the law and respect stare decisis. When they get into the business of approving or rejecting laws based on political awareness, again it is a slippery slope. It is no wonder that more and more dissatisfied people turn to the courts when they can’t get what they want from Congress or the President.
There is a fundamental difference between people petitioning the courts for help from an unconstitutional statute and people petitioning the courts for relief from a law they don’t like. Obviously, just because someone doesn’t like a law or ruling doesn’t make it unconstitutional. Unfortunately, the Courts have become more and more a sympathetic ear for the latter. It certainly is a lot easier and faster to petition the Judiciary than Congress. We are quickly coming to the point that every law passed by Congress or the States have to be approved by the Supreme Court. Is that a separation of powers or overreach by the Judicial Branch? If we are going to do that, then each judicial appointment will become more important than the election of a congressperson, senator or the President itself (note the gender-neutral reference). These appointments will have more importance than anything else in the Federal Government.
Society is being led to ridiculous circumstances due to the rulings of well-meaning jurists in cases brought by well-meaning lawyers. Political correctness is dissolving into a morass of conflicting rules and regulations. When a girl can take steroids and hormones to transition into a boy and literally wipe the wrestling mats with his/her opponents in a girl wrestling tournament something is fundamentally wrong. It is the result of a judiciary gone amuck.