Commentary

Much of the conservative punditry has focused their angst on John Roberts and his continued pandering to the left side of the Supreme Court.  Granted, the recent DACA decision is a disappointing attempt to square a circle – but it seems fixable.  At least if Donald Trump is reelected.

The more important decision is Justice Gorsuch’s opinion to force America to accept the patently false “fact” that the drafters of the original federal statute barring employment discrimination meant to include the entire “Alphabet Population” in their definition of “sex”.  It is a shocking development.  Mr. Gorsuch was recently appointed to the Supreme Court as an “originalist”, a “strict constructionist”, a jurist who would help restore a limited judiciary and a respect for the rule of law.

Wow. To see him lead the effort to blatantly legislate from the bench is pretty disheartening.

And it is crystal clear that Mr. Gorsuch indulged himself in the sordid business of turning the 9-member Supreme Court into something of a “super legislative branch”.  We have witnessed the Idaho Legislature and many county commissioners wrestle with the social and moral implications of “adding the words”.  Many hours of testimony and legal analysis have gone into the question in the Capitol building.  And the Legislature has rejected the notion of legitimizing “gender identity”.  (We grieve for the wasted time of those many Idaho legislative heroes whose work has just been cast aside).

Our elected lawmakers – including members of the U.S. Congress – have been peremptorily overruled by the “Uber-Legislators” wearing really smart black robes.  And they have, therefore, set in motion a social revolution with dire consequences for America and our children.

Aside from the abuse of constitutional authority, it really is astonishing to see a man like Neil Gorsuch lend credibility to the absurd notion that gender is not a matter of biological reality  – but one of opinion or choice or pop trend.  It is such an anti-intellectual posture that one is left completely bewildered trying to account for how one of Gorsuch’s clear intelligence could validate such nonsense.  His opinion is nothing less than another attack on the whole foundation of Western society — and its embrace of an objective, knowable reality.

While the Gorsuch opinion is not a finding of the U.S. Constitution per se – it is clear that the present court will have no problem creating a plethora of new “rights” for the Alphabet Crowd once given the opportunity.

But let us return to this issue of Gorsuch’s abuse of Constitutional authority.  It is an axiom of conservative philosophy that the role of the US Supreme Court and federal judiciary should be greatly proscribed.  It does not have the legitimate authority to create new law or new rights; those are powers reserved to the People and their elected representatives.  Yet here we are: a Court we thought was “conservative” has betrayed, again, those principles.  Once more we discover a justice may not have been honest when interviewed for the position.  (And why does this only happen with Republican appointments to the bench?)

The obvious abuse of authority by Mr. Gorsuch and Mr. Roberts presents a serious challenge to the conservative movement: Our hopes for shrinking the abusive power acquired by the federal judiciary can no longer rest entirely on the proposition that we must win elections and find the “right” person to serve on the high court.  Of course, that strategy must continue to be pursued; it is simply elementary that that strategy is insufficient.  There will always be guys like Neil Gorsuch.

We must think deeper about this profound problem – as it is among the chief threats to a functioning and accountable Republican form of government.

We submit that the Founders would not be particularly shocked by a judiciary which continues to arrogate power to itself.  Some of the more learned might have predicted it, based upon their mature understanding of man’s nature.  In fact, they bet on it.  They crafted a Constitution built upon the assumption that man would seek to build personal and institutional power; the Founders then set those baser ambitions against one another.  We know this mechanism as “checks and balances” – and it was that grappling for competing power interests which would preserve our freedoms and accountable government.

This gets us closer to the problem at hand.

Upon just a rather lazy contemplation of our current straits, it becomes obvious that what we are missing is any real check upon the federal judiciary.  That branch of government is out of control, and threatens our very liberty to govern ourselves, because the other branches of government have failed to provide a meaningful check upon power-grabbers like John Roberts.  The Executive Branch, particularly under President Trump, cannot be much maligned for negligence in this matter since they are in regular conflict with the judiciary.

The real culprit in this tale of degrading freedom is Congress.  It has been an eternity since the U.S Congress has done anything meaningful to check the abuse of power which streams from our federal benches.

We propose that the conservative movement begin demanding of politicians seeking federal office a concrete action plan for holding the judiciary accountable.  The U.S. House of Representatives has at its disposal a huge weapon in the form of the appropriation process.  They also have the ability to override decisions like the one just foisted upon us by Gorsuch, by amending the original discrimination in employment act by making it clear that sexual “identity” does not meet the requirements of special protections.  It could also include particular protections for religious and moral objections to protect the First Amendment rights of employers.

But let’s discuss some other potential challenges to the arrogance of the judicial oligarchy.

We could demand that members of the U.S. Senate begin holding impeachment hearings on those members of the judiciary who have been convicted of crimes.  We might also demand that Congress approve an amendment to the Constitution withdrawing life-time appointments for all members of the federal bench – and granting ten-year renewable terms for lesser judicial offices at the district and appellate levels.  This might strike an appropriate balance between the need for an independent judiciary and the need for greater judicial adherence to the actual words and intent of the U.S. Constitution.

What if Congress enacted a ten-year term for each district and appeals court appointee?  Congress might require that, at the end of that term, a judge would have to be re-confirmed.  This would give senators the opportunity to review the work of said judge to see if they have upheld their oath of office.  Those with a clear record of abusing their authority could be denied reconfirmation, thus opening the position to a new nominee.  This change alone would likely have a profound impact on those judges tempted to impose schemes reordering society in their image.

This is by no means presented as an exhaustive list of reforms and actions available to Congress –  merely a beginning point to generate a new way of thinking about how to meet this most lethal threat to our Republican form of government.

Without a robust and concerted effort by the Congress to arrest the judiciary’s abuse of power, the trajectory is clear.  It is simply irrational to continue to pin all our hopes on individual nominees to restrain themselves in the face of gross temptation.  We must demand a restoration of institutional checks upon the judiciary’s lust for power.  No more hand-wringing at public rallies.  We must insist upon action.