THE WANDERER, JULY 10, 2003

JOSEPH SOBRAN'S
WASHINGTON WATCH

Controlling the Court

     The U.S. Supreme Court's affirmative action rulings 
were still being hotly debated when the Court surpassed 
itself, later in the week, by striking down a Texas 
sodomy law as unconstitutional. This of course will have 
the practical effect of invalidating all sodomy laws in 
the United States.

     The majority opinions in the Court's affirmative 
action cases were written by Sandra Day O'Connor, 
appointed by Ronald Reagan; the majority opinion in the 
sodomy case was the handiwork of another Reagan 
appointee, Anthony Kennedy. No liberal president could 
have picked a worse pair. Liberals, naturally, see both 
these justices as "moderates."

     Robert Novak reports a rumor that President Bush 
will name O'Connor chief justice if William Rehnquist 
retires soon, as expected. She should be confirmed 
without objection by the Democrats. If Bush chooses 
conservatives for other vacancies, it will be a different 
story. The courts are the Democrats' last hope, and they 
are prepared to fight, filibuster, and do whatever it 
takes to keep them a liberal stronghold.

     Kennedy's opinion in the sodomy case was marked by 
the woolly philosophizing that has been his trademark. It 
was full of vague rhetoric about "dignity," "autonomy of 
self," and "transcendent dimensions" and devoid of 
specific references to the Constitution, apart from a few 
brief allusions to the Fourteenth Amendment. It spoke of 
an "emerging awareness" (whatever that may mean) that 
private sexual acts, sodomite and otherwise, are 
constitutionally protected.

     Kennedy even proudly quoted his own risible dictum 
in Planned Parenthood v. Casey: "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." Evidently the Texan sodomites were arrested for 
defining their own concept of existence in a rather 
unusual manner. In a bitingly witty dissent, Antonin 
Scalia (also a Reagan appointee, be it said) mocked 
Kennedy's "famed sweet-mystery-of-life passage," which he 
said threatens to become "the passage that ate the rule 
of law."

     Liberals can't stand Scalia's wit. The normally cool 
David Broder wrote angrily in THE WASHINGTON POST that 
Scalia's bad manners disqualify him as a possible chief 
justice, and Maureen Dowd of THE NEW YORK TIMES called 
him a "stegosaurus," and a "homophobic" one at that. (As 
any paleontologist will tell you, homophobic 
stegosauruses were the very worst kind.)

     Scalia, in short, does not play well with other 
children. He noted that the Court has "taken sides in the 
culture war," which is exactly right. The sodomy ruling 
had no more to do with the Constitution than the Court's 
abortion rulings have; once again the Court has merely 
adopted a trendy view shared by the chattering classes 
and called it the law of the land.

     These rulings would have astonished even the men who 
framed and ratified the Fourteenth Amendment. That 
amendment, badly drafted and dubiously ratified in the 
first place, has been perverted into an all-purpose 
warrant for judicial power, allowing liberal federal 
courts to strike down virtually any law they dislike. In 
this case, the Court found that sodomy laws 
"discriminate" against "homosexual persons" as a "class" 
or "group." They do not. They forbid specific acts, 
regardless of whether the violator chooses to define 
himself as a "homosexual."

     Homosexual activists were delighted by the Court's 
decision, seeing it as an important step toward what they 
regard as "full equality," including same-sex marriage -- 
exactly the effect Scalia predicted in his dissent. The 
Constitution has become quite useless in foreseeing which 
way the Court will go in the future; the liberal 
zeitgeist is a much surer guide.

     The decision outraged and alarmed conservatives, who 
quickly called for a constitutional amendment defining 
marriage to prevent homosexual unions from achieving 
legal status. It makes you wonder if conservatives ever 
learn. Since when has the Constitution stopped liberal 
courts from doing as they please?

     Why blame bad constitutional law on the 
Constitution? The problem is the courts, not the failure 
of the framers to envisage every possible abuse of their 
handiwork. Must we amend the Constitution every time a 
Kennedy twists it to mean something it manifestly doesn't 
mean?

     Besides, the sodomy ruling wouldn't be reversed by 
putting a definition of marriage into the Constitution; 
on the contrary, such an amendment would presuppose its 
legitimacy. There has to be a better response.

     And there is, though I don't expect conservatives to 
make it. When Roe v. Wade was issued, conservatives made 
the mistake of accepting it as legitimate and proposing 
such "solutions" as new amendments. The proper response 
would have been to demand the impeachment of the justices 
who had voted to usurp the powers reserved to the states 
under the Tenth Amendment. If the power to protect the 
innocent from violence isn't such a power, what on earth 
is?

     In the sodomy case too, the Court has flagrantly 
exceeded its authority. If usurpation isn't grounds for 
impeachment, we may as well burn the Constitution.

     Amending the Constitution is a cumbersome process, 
far too difficult to make it a useful corrective to 
usurpation. That's what impeachment is for: to remove 
from office those who violate their own oaths to uphold 
the Constitution. It isn't a criminal proceeding; it's 
merely a measure to protect the people from those in 
power.

     We are constantly told that the United States was 
founded to secure democracy or equality or some such 
lofty purpose. The truth is that the Union was supposed 
to be a federal *republic,* as opposed to a monarchy or 
hereditary oligarchy. Its rulers would be public servants 
who, unlike kings, should never be sure that their jobs 
were safe. The power to impeach would stand as a constant 
reminder to them to respect the limits of the law.

     Public servants, of *all* people, should never 
enjoy job security in a republic. Both elections and 
impeachments are supposed to be guarantees against the 
virtual ownership of power. Impeachment should therefore 
never be regarded as a drastic emergency measure; it 
should be as normal as any power to hire and fire.

     Unfortunately, it is so rarely invoked that it has 
come to seem an extraordinary last resort. It has seldom 
been used against presidents, and never against justices 
of the Supreme Court. Is this because it is seldom or 
never warranted? Hardly. As a result, we have been 
defenseless against the judiciary, which doesn't even 
have to worry about elections. It has enjoyed virtually 
perfect job security, and it has behaved accordingly. The 
neglect of the impeachment power has only strengthened 
the courts' natural temptation to use their power 
irresponsibly.

     So once again we have been shocked, but not 
surprised, by the Court's bold affront to the rule of 
law. To read Kennedy's opinion in the sodomy case is to 
hear the confident voice of sheer power, assured that it 
will face no consequences for whatever it may choose to 
say, knowing that even its whims have weight. But 
precisely because the High Court doesn't have to face 
elections, it should have to think about impeachment.

     At this point it's unlikely that an attempt to 
impeach justices of the Court could succeed. But unless 
the subject is at least raised, it will be even harder to 
impeach in the future. And even a reminder of the 
possibility might deter the justices from taking their 
constitutional duties as lightly as they are in the habit 
of doing.


Correction: After this column had gone to press, my 
friend Thomas Droleskey reminded me that Justice Samuel 
Chase was impeached in 1804, but was acquitted by the 
Senate.

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