Judicial Power

The Supreme Court has become our most powerful national institution—but what is it doing?
From the June-July 2006 Trumpet Print Edition

I am against two things: family and religion.

The notion of preserving some archaic definition of “family” offends me. First off, who defined marriage in the first place? And if you believe certain sexual behavior is wrong—which I certainly don’t—how would you enforce your rules: by invading people’s bedrooms, trampling on the right to privacy? The spirit of tolerance demands that we allow free men to define family for themselves.

Also, the idea that God has a place in U.S. society goes against the principles I hold dear, the tenets by which civilization should be governed. Any American knows that church and state must be kept separate. Should Muslims be forced to view publicly displayed religious messages like the heavy-handed Ten Commandments? Should a young Buddhist be forced to listen to school prayer? Should millions of atheists feel compelled to say they belong to one nation under God?

You might think I’m extreme or that my views won’t carry any weight. But think again. I am, after all, the Supreme Court of the United States of America.

The war on family and religion in the U.S. is now decades old, and one of the primary weapons of those who oppose morality is the judiciary. Congress does not typically pass laws that are years ahead of the American people in terms of moral degradation. The president certainly has not come out against family or religion. But because of radicals in robes, family and religion are on the defensive; a tiny group of judges has created a pattern of rulings that are against God.

God Himself said it would be so. When the Prophet Isaiah warned about a lack of leadership in the modern nations of Israel and Judah, he specifically warned that God would take away the “judge”—the men who would interpret the law and properly administer justice (Isaiah 3:1-3). Today, the highest court in the land is handing down morally irresponsible rulings that violate God’s laws and attack religion and family. To do so, justices are forced to violate even the U.S. Constitution.

A Case for Law

In his classic text on constitutional law, The Tempting of America, Judge Robert Bork explains the concepts of originalism and judicial activism. Originalism means that judges look to the U.S. Constitution but avoid creating rights beyond those defined by the Constitution. Originalism promotes the rule of law by imparting to the Constitution a permanent, predictable meaning.

But rather than limiting themselves to the original intent of the Founding Fathers, some justices engage in judicial activism: predetermining the outcome they would like to see, then devising a reason to support it. Some Supreme Court justices engage in an “endless search for extra-constitutional justifications and inventions to explain their activism,” according to Mark Levin, author of the New York Times bestseller Men In Black, an exposé on the effect the expanded power of the Supreme Court is having on society.

Justice Ruth Ginsburg says a strict interpretation of the Constitution is unworkable, even going so far as to say that “boldly dynamic interpretation departing radically from the original understanding” of the Constitution is sometimes necessary. Former Vice President Al Gore may have expressed this philosophy best when he said the U.S. needs an “evolving” Constitution.

Justice Sandra Day O’Connor was willing to look well beyond U.S. law to make her rulings, even if it meant turning to foreign governments for support. She said rulings in other countries “should at times constitute persuasive authority in American courts.” She also stated that “[i]nternational law is no longer a specialty. … It is vital if judges are to faithfully discharge their duties.” Using that reasoning, foreign law could even supersede U.S. law at times.

In his desire to give his rulings constitutional authority, Justice William Douglas wrote in 1965: “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In other words, according to Douglas, rulings can have constitutional authority based upon mere implication. This nebulous reasoning has enabled some justices to find constitutional ground in empty air.

This brand of judgment has increased judicial power far beyond what the Founders envisioned. The intended power of the Supreme Court was quite limited: Its function was to interpret law.

The roots of expanded judicial power are found in Marbury v. Madison (1803), the landmark case that established the right of the Supreme Court to declare a congressional act unconstitutional. Lame-duck president John Adams had tried to appoint 42 new judges on his final day in office. When Thomas Jefferson assumed the presidency, he voided 25 of the appointments. One of the judges, William Marbury, took the case to the Supreme Court.

Though the court ruled that Marbury was entitled to his appointment as a judge, it found that the court had no constitutional right to issue mandates to members of the executive branch. The court would not—now legally could not—order the secretary of state to deliver the appointment. Though the ruling itself was of little consequence, its language redefined the power of the Supreme Court. The principle of judicial review—that the court could review acts of Congress—was established, along with the potential for the Supreme Court to become a much more powerful branch of government.

Judicial review was not used again until the disastrous 1856 Dred Scott decision, when Chief Justice Roger Taney ruled that any congressional ban on slavery was unconstitutional because it denied property without due process. This decision clearly breached Article iv of the Constitution, which gives Congress the power to establish “all needful rules and regulations,” and also ignored the reality that free black men had exercised voting rights in five of the original colonies. In his dissenting opinion, Justice Benjamin Curtis wrote that when the “theoretical opinions of individuals are allowed to control its [the Constitution’s] meaning, we have no longer a Constitution ….”

The idea that men can interpret the Constitution to mean whatever they want has created the Supreme Court we see today.

Two Concepts

Two simple concepts, without root in the Constitution, have helped shape important modern judicial rulings. The first is separation of church and state.

The judicial origin of this concept is found in Everson v. Board of Education (1947). Justice Hugo Black’s ruling inserted into judicial dogma a metaphor that Thomas Jefferson originated: the famous “wall of separation between church and state.” Of course, Jefferson never intended that the establishment clause be used against religion; rather, it was a check against wrongful use of government power.

But Justice Black, who had been a member of the anti-Catholic Ku Klux Klan, established a dangerously anti-religious precedent: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. … The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

Levin points out that this ruling could lead to absurd outcomes: For instance, if a cleric had a heart attack while preaching, he could not use a public ambulance to go to the hospital.

Since that original 1947 ruling, this idea of the separation of church and state has been at the heart of rulings against school prayer and the public display of the Ten Commandments, as well as an attempt to have the Pledge of Allegiance removed from schools that, despite not being successful, clearly left the Pledge in judicial limbo. In 2004, the court ruled that a state could bar a scholarship student from pursuing a degree in theology.

The Supreme Court’s 2003 refusal to overturn the rulings against public display of the Ten Commandments was particularly egregious, given that District Court Judge Myron Thompson had written in his November 2002 ruling that the state cannot legally acknowledge God. The Declaration of Independence, the dollar bill, and virtually every presidential speech would seem to indicate otherwise; nevertheless, the Supreme Court let Thompson’s ruling stand as the law of the land. That means, in the United States, the law now requires that the government divorce itself from any sort of moral compass.

The second concept that deserves our attention is the right to privacy. “Right to privacy” sounds American. It seems like such a fundamental truth that no citizen would want to see it infringed.

Here’s the shocker though: The right to privacy has no real basis in constitutional law. In fact, the phrase “right to privacy” has been used to effectively wage a war on family and family values.

This was, in fact, the “right” that Justice Douglas found in a “penumbra formed by emanations” of the Constitution (his words). The argument for right to privacy began in a minority opinion in a 1961 case regarding the sale of contraceptives. Although the case was tossed out, Justice John Marshall Harlan issued a dissent saying it would be “an intolerable and unjustifiable invasion of privacy” to make contraceptive use an offense. Thus, the genesis of the “right to privacy” is found in a dissenting opinion on a case that did not even require a ruling.

In a second attempt to establish a right to use contraceptives, in 1965, the executive director of the Planned Parenthood League of Connecticut prescribed birth control to a married couple. The relationship at hand was doctor-patient, but the ruling talked about the right to marital privacy. One line in particular from that ruling has been used to support abortion and sodomy: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”

Justice Black objected to this newfound right to privacy: “The court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not. … ‘Privacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. … I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

Of course the government has a right to regulate behavior in the bedroom. Otherwise, polygamy, bestiality, rape, and any number of other crimes would be deemed legal—even murder in your bedroom would fall under the privacy rule.

Legalizing Abortion

In 1972, Justice William Brennan argued to further expand the right to privacy: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Thus, in another ruling on contraceptives, Justice Brennan laid the groundwork for the legalization of abortion under the umbrella of the right to privacy.

In the famous 1973 Roe v. Wade decision, Justice Harry Blackmun, while acknowledging that the Constitution does not mention a right to privacy, said that the court had recognized certain areas or zones of privacy. “These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ … are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage … procreation … contraception … family relationships … and child rearing and education ….”

Levin correctly analyzes the legal relevance of Roe v. Wade: “Blackmun felt that the right of privacy, wherever it comes from, includes the right to abortion. Do not look any further for legal argument amidst the voluminous opinion, because it does not exist.” The extra-constitutional existence of a “right to privacy” extended to a right to abort unborn children.

Further clarifying abortion law in Planned Parenthood v. Casey (1992), Justice Anthony Kennedy wrote: “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.” Ironically, while the court allowed everyone else the liberty to define existence, it gave the unborn fetus no right to exist at all.

Mystified by Kennedy’s explanation, Justice Antonin Scalia later wrote, “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.” Simply put, if a person can regulate his actions based on his own concept of existence, the law simply does not apply to him. Justice Kennedy’s philosophizing made it unnecessary to offer legal basis for his ruling.

Whether someone is for or against abortion, it has no legitimate constitutional underpinnings. But with the abortion battle largely won for now, the judicial activists have turned to the redefining of marriage as a concept.

Redefining Marriage

On June 26, 2003, again under Justice Kennedy’s pen, the Supreme Court determined a fundamental right to sodomy in the landmark case Lawrence v. Texas. The majority ruling claimed the Lawrence decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Justice Scalia responded in his dissent: “Do not believe it.”

“This effectively decrees the end of all morals legislation,” Scalia wrote. “If, as the court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, [no law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational-basis review.”

Whether or not you agree with abortion, whether or not you support homosexual marriage, the route taken to legalize these things has decimated the integrity of our judicial system.

But equally concerning to the legally spurious nature of these rulings is the fact that the court is throwing morality out as a basis of judgment.The law is intended to provide moral leadership. Instead, the court is devising law that protects immorality. Sound judgment based on morality is gone, just as Isaiah prophesied!

Consider one final example of the court leading a moral downslide: its support of child pornography.

By law, in the United States, material that is “indecent” is protected by the First Amendment, while “obscene” material is not protected. Who decides what is “indecent” and what is “obscene”? Congress says “contemporary community standards” should determine what is harmful to children. In other words, whatever the majority of people believe is okay.

That rationale would be bad enough, but in 2002, the Supreme Court deemed parts of the 1996 Child Pornography Prevention Act unconstitutional. The Supreme Court decision, in a 6-to-3 vote, ruled that “virtual” child pornography—created using computer images instead of actual children—can be okay, along with pornography that involves adults who look like children.

Is this decision going to strengthen the nation? Does this reflect sound reasoning? If these judges would simply carry out their jobs appropriately, they could put a stop to such nonsense! Instead, they torture existing laws in order to discover such “rights” as the freedom to create family-destroying, photorealistic child pornography. In doing so, they vitiate the moral foundation of the nation.

The law now protects your right to act immorally even if Congress, the public, and even prior law says you should not.

Even when Congress opposes judicial activism, the courts and the media defend this perverse, outcome-based method of ruling that allows judges to decide cases based on what they personally feel is right.

That idea is not new. Referring to ancient Israel, Scripture states: “In those days there was no king in Israel: every man did that which was right in his own eyes” (Judges 21:25). This period of men following after their own ways—using their own human reasoning as a substitute for the law God gave—produced the darkest period in Israel’s history. Today, it has led to a society whose court system opposes two things: God and family. There is leadership to be sure—but it is far from lawful, far from moral, and certainly far from godly.

God’s Law

Of course, the U.S. Constitution is not a perfect document. But does that mean God would want us to break that law? Far from it. Jesus Christ commands us to be good citizens wherever we live, paying our taxes, obeying His laws—and obeying the laws that are in place where we live. Man’s laws may be imperfect, but unless they contradict God’s laws, there is absolutely no basis in Scripture for violating them.

The U.S. Constitution in particular is tied to a declaration that our rights and freedoms are derived not from a king or a country or a government or even from law, but from the source of law and morality: God Himself.

Anciently, God expected the king of Israel to write a copy of the law by hand—not to write his own law, but to write the law of God out meticulously.

The further we get from God’s law, the worse the result. God didn’t grant anyone the right to commit sexual sins, even in their own bedrooms. In its original intent, neither did the U.S. Constitution. These rulings defy God’s law. God certainly didn’t grant any man the right to redefine marriage—an institution that He Himself ordained.

Neither God nor the Constitution grant justices the right to make the sort of lawless decisions they make today. By grabbing power and writing law from the bench, radicals in robes are waging a war on religion and family.

The Prophet Micah knew our leaders would abhor judgment in the end time (Micah 3). The leaders of the U.S. will not—in fact, now legally cannot—acknowledge God.

The intended basis of any law is morality. The manipulation of the U.S. court system has twisted the law into a sickening caricature of itself: The law is becoming a set of rules protecting your “right” to behave in a morally bankrupt and ultimately destructive way.

When we see the results of degraded law, it becomes clear why King David loved God’s law and said it was his meditation all the day (Psalms 119:97). Such an attitude means we can have proper judgment; we will have it when Jesus Christ returns to establish a kingdom with judgment and justice forever (Isaiah 9:7). When Jesus Christ is established as the Judge over all mankind, then the entire Earth will see the fantastic results of holy, righteous judgment based on morality as defined by God.

For more information on this subject, request our free booklet No Freedom Without Law.