The problem with the courts

William J. Olson and Herbert W. Titus take a look at a SCOTUS ruling that medical precautions in abortion are unduly restrictive in Whole Woman’s Health: Justice Thomas Exposes the Court’s Corrupt Abortion Jurisprudence. A dissent describes a broader view of just where the problem in the SCOTUS decision lies.

Justice Thomas concluded: “Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.” Concluding with a frontal assault on balancing tests, Justice Thomas warned: “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat[.] … If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.”

“The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not – and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate[.]”

In other words, the courts have become so politically active that the only way to tell what decision they make is to examine the political ideologies of the judges. The actual law has very little to do with anything anymore. 

Think of the movie Red October where a captain orders that the safeties on a torpedo be turned off is the first two attempts did not get the desired results. That is what is happening with the courts: the safeties for governance are being turned off. In the movie, we found out why the safeties were there. Let us hope we avoid analogous results from court actions to remove the safeties on government.

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