Brett Kavanaugh, the U.S. flag, and the U.S. Supreme Court building

Is America Still ‘the Land of the Free and the Home of the Brave’?

The antics associated with misnomered “hearings” on the confirmation of Brett Kavanaugh to the U.S. Supreme Court demonstrate why the last line of our national anthem, “The Star-Spangled Banner,” might more accurately refer to America as the ‘land of the un-free, because we’re home of the uncourageous.’

We Are Not Free When Governed by a Policy-Making Federal Judiciary

We not free as a body politic when a body of uncourageous people allows an unelected body of federal judges to degenerate into a policy-making body, particularly when they are prone to put their policies into constitutional cement by finding rights and limitations on elected bodies and on the people that just aren’t there.

When it comes to the U.S. Supreme Court, though, I’m not just talking about Justices Ginsburg, Kagan, Sotomayor, and Breyer, who, if collectively referred to as “Batman,” were most often joined in their social policy capers by their “Robin” sidekick, Justice Kennedy. I’m talking about Justice Roberts, too, who upheld Obamacare’s individual mandate as a so-called “tax” and then “interpreted” the words “state exchange” in Obamacare to mean “state and federal exchange.”

The ‘Body of the Cowardly’

But of whom do I speak when I refer to the “body of uncourageous people”? For the answer to this, I turn to one of the opening speeches in the Kavanaugh hearings, that of Senator Ben Sasse.

Let me bullet point Sen. Sasse’s statement for the sake of making it a bit more accessible. He said that:

• because the “legislature,” meaning Congress, “is impotent; the legislature is weak,”
• by which he meant that Congress doesn’t “do a lot of big political debating,”
• the people have sought for “a place where politics can actually be done,” and
• so “we,” meaning Congress, “have transfer[ed] it to the Supreme Court.”

Let me deconstruct this a bit, and you’ll have the answer to my question about the cowardly.

I agree with Sen. Sasse that Congress is weak, but it is not impotent, at least not constitutionally, to reverse the “transfer” of political power to the U.S. Supreme Court that it has allowed, though I think usurpation, rather than transfer, is sometimes a better word. There have been times when I think the U.S. Supreme Court has usurped power from Congress precisely because it sees Congress as dysfunctional and incapable of carrying out its duties.1 However, the Court must resist the urge to fix the political mess in which Congress finds itself; a breach or abandonment of constitutional responsibility by one branch is not cured by that of another.

Congress Is Not Impotent to Right the Balance of Power

As I’ve explained in the past, the framers of the Constitution envisioned the U.S. House impeaching and the U.S. Senate convicting federal judges for allowing the “order of the political system”—the proper allocation of powers among the three branches of the federal government and between the federal and state governments—to be “affect[ed]” to “any sensible degree.”

To understand that federal judges, and particularly Supreme Court justices, have affected that “order” beyond any “sensible degree,” we need only look at the extent of the disorder and nonsense taking place in the Senate Judiciary’s hearings on Judge Kavanaugh.

You would think by the Kavanaugh circus we have observed this week that we were appointing a ringmaster to the High Court of Heaven itself before whom all other governing bodies must bow and with respect to whom no one has any recourse. And, of course, since this Court, not the real High Court of Heaven, now holds the keys to life and death (abortion) and the “transcendent” meaning of marriage, that is what our senators are doing.

But let’s be honest; the use of the power of impeachment to reverse the flow of politics into the courts of the federal judiciary won’t happen, not just because the members of Congress who rail against “black-robed legislators” have a weak stomach for serious debate, but because they simply are not courageous enough to start a debate about it in the first place.

Even if those members of Congress (i.e., ostensibly Republicans) knew the power of impeachment had been given them for just such a time as this, I don’t think any of them have enough courage to file articles of impeachment on even the worst offenders, such as Judge Posner, who has publicly stated that he does not uphold the written U.S. Constitution, but what judges say about the U.S. Constitution. That, Judge Posner, is not what the oath you took says.

Moreover, these congressional members are not courageous, because, to be honest, most prefer to let courts decide critical issues instead of debating and deciding them for themselves. Doing that is politically risky and avoiding risk is what those lacking in courage do. Besides, beginning to impeach judicial usurpers of the policy powers of Congress would take away something these politicians can rail against during campaign season and for which they can solicit our financial support and vote. Impeachment of some of the worst usurpers of Congress’ policy-making powers or the usurpers of the powers of the states might make the issue of black-robbed legislators less important politically.

Members of Congress are the uncourageous body that has made us the land of the politically un-free. And they will not have the courage they need as “leaders” to impeach a few federal judges until we lead them.

That means more of us need to understand the problem, become aware of the remedy that’s available, and insist that those we elect gather up their courage and begin to use it. Only then can we be rightly called the land of the (politically) free and the home of the brave.

NOTES

  1. For example, I think that’s why Justice Roberts gave such an expansive reading to “state exchanges” in Obamacare. Had those words be given their plain meaning, Obamacare would have failed financially and practically, and no doubt he knew that Congress would have been too inept to replace it, as evidenced by ineptness of the Republican-led Senate after President Trump was elected.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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