The Supreme Court has entered a period of relative silence on social issues. On Nov. 28, the court refused to hear a challenge to the Supreme Judicial Court of Massachusetts' ruling sanctioning gay marriage. On Jan. 10, the Supreme Court refused to hear a constitutional challenge to Florida's 1977 law banning homosexuals from adopting children.
This silence is a short respite from an era of judicial activism. The court is resting because its justices fear public backlash. And they should fear public backlash -- they've abdicated their duty. Every Supreme Court justice sitting on the bench took a solemn oath to "faithfully and impartially discharge and perform all the duties incumbent on me ... according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States. So help me God."
Why, then, does the court administer "justice" based on personal predilection instead of the Constitution? Why has the court consistently exceeded its powers to create prophylactic rules based only on its own, elitist value system, instead of protecting rights enumerated in the Constitution? Why have the justices subverted the rule of law by undermining that most fundamental of American rights -- the right to vote for policy-makers who will legislate -- in favor of rights that do not exist under the Constitution?
Here's the usual pattern the justices have used to supplant the will of the people: First, they find a right enumerated in the Constitution. Then, they expand the right (and their reading of the right in the Constitution) according to their completely subjective opinions about policy. That expansion often means creating brand-new rights that are not enumerated in the Constitution. With the expansion of old rights and creation of new rights, the court finds a way to cut down laws it does not like, even if those laws are completely consistent with the words of the Constitution.
A perfect example: In a 1965 case, Griswold v. Connecticut, some Yale professors challenged a Connecticut state law barring couples from using contraception. It was an archaic policy and a policy that was never enforced. Nonetheless, it was wholly consistent with the Constitution, which allows legislatures to legislate in areas that are unprotected by the Bill of Rights. The Supreme Court ruled that such a statute was unconstitutional; in order to find it unconstitutional, the justices created a brand, spanking new right to privacy from areas of the First, Third, Fourth and Ninth Amendments.
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