Anyone who follows the storms of political commentary will be aware that the Left is angry that the Supreme Court of the United States is currently moderately conservative. (I make it roughly 5.33 conservatives to 3.67 left-liberals, as Chief Justice John Roberts has proved that he cannot be trusted.) This morning, John Hinderaker comments to that effect:
Why is the Court suddenly controversial? Obviously because it is, at the moment, in the hands of relatively conservative justices. Democrats revere the Court when it is ruling their way. When they lose a few cases, they stir up bogus “ethics” controversies. Not because they have any merit, or because any knowledgeable person takes them seriously, but so that they can generate endless headlines in Democratic Party news outlets about the “controversial” Court that supposedly is dogged by ethics charges. This will undermine the Court’s stature in the eyes of the uninformed, and perhaps cause justices to take a more liberal turn in order to turn off the heat.
This is spot-on, as usual. I find even more thought-provoking this story from Bloomberg:
The Supreme Court, in the midst of a run of decisions that have stress-tested the core principles of US democracy, has rarely been so aggressive in using its powers — or been viewed with more skepticism by Americans.
There’s that word “democracy” again. While I generally approve of the presidency of Andrew Jackson, I sorely wish he hadn’t popularized the notion that our nation is a “democracy.” It is not, has never been, and was not intended to be any such thing. But I digress. My focus this morning is on the notion that the Supreme Court is “powerful.”
When civics education was deemed important, among the things children were taught is that the judicial branch is considered the “least dangerous” of the three branches of the federal government, and that it was made so by the Framers’ intent. The courts, all the way to SCOTUS, have no enforcement power. They issue opinions; that’s all. Enforcement lies in the hands of the executive branch, which possesses the armed men and the funding with which to act. Therefore all the actual power lies in the executive – beyond the reach of the courts.
The executive branch has declined to enforce SCOTUS’s opinions on several; memorable occasions. The first and best known was in the McCulloch v. Maryland case, where SCOTUS ruled that Congress had an “implied power” with which President Jackson disagreed: i.e., the power to establish a national bank. This is the case which gave rise to the (apocryphal) Jackson statement “John Marshall has made his decision. Now let him enforce it!” And indeed, Chief Justice Marshall could do nothing of the sort.
The “power” of the federal courts lies in their ability to sway opinions: those of the other branches of the federal government, and of Americans generally. As influence over opinion sometimes does translate into influence over action, in the scheme of things this is not inconsiderable. However, it only exists when respect for the courts is high. As Hinderaker notes above, the Left is working furiously to degrade that respect.
Unfortunately, judges, including Supreme Court Justices, are as sensitive to what the media say as any elected politician. Just as they can influence the opinions and actions of others, they can be counter-influenced by a campaign of criticism and calumny against them. When the media are aligned against them, the pressure is strong. When the Left’s activists are permitted to besiege them, their families, and their homes, it nears a critical level.
It’s not that long ago that two Supreme Court Justices were savagely attacked by Democrat legislators and media columnists over the Dobbs decision, which returned authority over the legality of abortion to the state governments. Justice Brett Kavanaugh’s home was besieged by Leftist activists for several days – and no enforcement power was deployed against them, despite the illegality of the act. SCOTUS had issued its opinion, and a strong one at that…but the Left was determined that it should not prevail. The counter-influencing emboldened several Democrat governors to defy Republican-controlled legislatures’ enactments limiting abortion in their states.
I’ve said it before: what matters isn’t the law, but whether the law is enforced, to what extent, and against what or whom. Indeed, enforcement holds all the trumps even when the law points in the opposite direction. If you doubt that, ponder what’s currently being done in the cases of Hunter Biden and Donald Trump.
And so Porretto’s Carbohydrate Aphorism rears its ugly head yet again:
Yes, I know it’s unpleasant, but so is the weight gain that follows.
