By David Hirzel
The Supreme Court was in the news for two landmark decisions that upheld laws of genuine importance to all Americans regardless of how the decisions affect their lives personally. The justices ruled that the Civil Rights Act of 1964 applies to all of us regardless of our sexuality, and that a president’s executive orders must follow certain protocols already enshrined in law.
These are two emotionally charged issues on which most of us have strong opinions, who are themselves and have friends and family who will be directly affected by these decisions. Most of us—evidently not all—view these decisions as a vindication of what is morally right, and Constitutionally guaranteed equal protection under the law.
The key word in these decisions, the driving concept of all Supreme Court decisions, is law. Keep in mind that because of the way that Congress operates these days, most laws coming out of that legislature are badly written. They have to be in order to get passed, filled with compromise, backscratching favors, unwarranted expenditures, and unforeseen consequences. The impenetrably convoluted Affordable Care Act is one such law, the Republican Tax Reform law of 2017 with its “opportunity zones” creating far more wealth for the wealthy than actual jobs of the working class is another. The much of the money from the COVID stimulus packages went to—no surprise here—well-funded private enterprise, rather than struggling small business.
And when Congress does not act according to a president’s wishes, the Executive Order comes into play. Like congressional legislation, most executive orders are badly written. They have to be, because they address a single action of great importance to the president, that will take too much time to be written into bad law (see above). Think of Obama’s Deferred Action for Childhood Arrivals (DACA) that barely survived its most recent challenge, or Trump’s misguided emergency declaration to get his Mexican wall started.
These two misshapen processes are precisely why the Supreme Court is so important. The court’s “judicial Power shall extend in all cases, in Law and Equity, arising under this Constitution,” and law that has been created over time by the other two branches of the national government. Ideally, they look at precedent from a dispassionate distance, not from a viewpoint unduly predjudiced by political or moral considerations.
The decisions come from nine (established by law in 1869) highly qualified judges who have sworn the same oath as every other federal officer: to uphold and defend the Constitution, and to faithfully discharge the duties of the office to which they have been appointed. Theirs is the all-important third branch, the sober one uninfluenced by election cycles and political commitments, the vital check and balance to the wilful extremes of the other two.
We can thank the very first Chief Justice John Marshall, whose court 1803 court ruling in Marbury vs. Madison confirmed for the first time, and for ever after enshrined, the right and duty of the Supreme Court to decisively rule on legislation. The law in question was overturned. “A law repugnant to the Constitution is void,” he wrote, and courts, as well as other departments, are bound by that instrument.”
The current president, expressing his displeasure about the DACA decision, asked “Do you get the impression that the Supreme Court doesn’t like me?” No, don’t flatter yourself, Mr. Trump. The Supreme Court doesn’t care about you. They care about the law.
(David Hirzel is a Pacifica resident and author of the book “When Your Life Depends on It: Extreme Decision Making Lessons from the Antarctic.”