Friday, June 26, 2015, became a significant day in our nation's long history of fighting for, and in most cases (though often with excruciatingly long delays) eventually achieving, equal rights for oppressed or minority groups. With the Supreme Court's 5-4 ruling (a disappointing stance by the court, but that's for another diatribe) in the Obergefell vs. Hodges case, the majority justices have dictated that marriage is an open right to all, protected by the Fourteenth Ammendment of the Constitution (and a litany of amicus briefs, empathy, and COMMON SENSE). The ruling deems all state laws inhibiting the rights of the gay community to lawfully wed are illegal. It also indemnifies the rights of all wedded gay couples at the federal level, a policy the federal government had been practicing the past several years but not officially articulated in law and thus always at risk of the changing whims of political tides.
It is in those concepts of Constitutionality and the shifting nature of political debate and climate that I had some ponderings reading a few quizzical thoughts in the paper.
In an article produced by David Lauter and Mark Z Baraback of the Tribune Washington bureau, “Marriage decision quickly splits '16 presidential race,” a cataloging of Republican presidential candidates' positions on the Obergefell decision read as one would expect, with most hopefuls towing the party line, some harder than others as they try to feed their bases. That's when I found a reference to everyone's favorite Canadian that left me puzzled, then jocular at it's fundamental hypocrisy.
Senator Ted Cruz of Texas did not care for the Court's ruling, deeming it judicial overreach, having “crossed from the real of activism into the arena of oligarchy.” Now I won't argue with him much on his slight indulgence of hyperbole, as one could argue nine justices adjudicating constitutional law of the land has whiffs of oligarchary. (Though I would probably argue we're more of a plutocracy.) But to single out that judicial board as if it actually had oligarchical powers obscures the judiciary's actual role and power within the government. And if we are to award Cruz the benefit of the doubt, could one not argue that each individual branch of government could be seen as it's own oligarchy (certainly even a group as large as 535 law makers in the legislature can seem like an oligarchy when their ruling power is compared proportionally to the more than 350 million citizens they govern)? In fact, what helps diminish that potentiality for any one branch assuming too much power is the constitutional system of checks and balances that leverages each branch of the government's authority against the others. And it is in that that Sen. Cruz's thoughts drew deeper consideration.
It seems in his disappointment and disgust at the actions of the Roberts' Court (though the chief justice was with the descent in this opinion), Cruz would like to call for a constitutional amendment to allow voters to remove Supreme Court justices from office. This legislative initiative would be troubling on many levels. This proposal from Cruz should be deeply troubling to his Tea Party base, because it makes him seem a bit of a sham.
Such an amendment would be troubling for two main reasons. First, let's admit there is no perfect way to pick our judges, at any level really. Judicial appointment can stink of nepotism, cronyism, political favoritism, even outright corruption. Justices being appointed lifetime seats with little chance of removal can present a potentially troubling future, particular as the sands of time shift and perhaps certain justices don't evolve or educate accordingly. But it is just that chasing of the zeitgeist and public attitudes that make electing officials (or in this case, making their removal a ballot issue) perhaps even more troubling. If justices must win elections to remain in office, they may pander to public whim in their rulings. They may need to exhaust resources and cultivate potentially dubious relationships to fund campaigning. John Oliver nailed this conundrum a few weeks ago much better and more entertainingly than I can.
The fear with that kind of vote chasing is that it is antithetical to the concept of justice. Justice is not the whims of the people. It is not a wavering concept or a political litmus test. Justice is often needing to make tough decisions that adhere to the principles and rules of LAW. Concrete concepts, despite at times being abstract, that must be adjudicated devoid of emotion or popularity. Would we really want a Supreme Court that must go into these deep, contentious, philosophical debates about constitutionality if in the back of their minds they realize the potential peril of ruling in a way that may not be politically popular?
Now if the thoughts of judicial elections or voter recriminations of the judiciary is not troubling in its own right, Congress passing that bill would be a travesty to our constitutional system in the first place. The limited powers for each branch of government laid out in Articles I (legislative), II (executive), and III (judiciary) of the Constitution delineates the powers and responsibilities of each body and establishes the system of “checks and balances” that aims to ensure a government of equally weighted institutions that can hopefully police itself of overreach. If Congress can pass a bill that influences the standing of Supreme Court justices, then the legislature is overreaching, attempting to usurp power from another branch of government while exerting power it does not have over that branch of government. Go read Article I for clarity. It lays out a lot of things Congress can do and what it can make laws on. The judicial branch is not one of them.
(Just to quickly refute the counter argument that the Supreme Court's ruling “legalizes gay marriage,” and it's judicial “activism” because they acted as the legislature or whatever. The Supreme Court doesn't draft laws. Cases come before it that challenge laws already on the books - laws created by legislatures as is their duty - and the Supreme Court rules on the legality of those laws in the context of their constitutionality - as it is deemed to do by the Constitution. If there is an issue with “judicial activism” or the like, then stop drafting laws that live on such flimsy constitutional ground, and maybe we'll have fewer of them defeated by a judicial body whose main job is to evaluate the constitutionality of legislation.)
This should all be deeply troubling to Cruz's base because it seems he forgot his roots. Cruz rose to prominency as a popular prominent of the Tea Party and it's messages. Whatever the Tea Party may be espousing now, the name is an homage to our Founding Fathers, and the great wisdom they had in establishing this country, its system of government, and the supreme law of the land, the U.S. Constitution. Tea Party members are strict constitutionalist, reading the document literally, adamantly defending it's thoughts and those of the body that drafted it more than 200 years ago, and relying on their “originalist” interpretation of this document in defending the populous from government overreach.
So it is with this mindset that the Tea Party must believe that even if they don't care for the ruling of the Supreme Court, and even if they think the justices practiced a form of constitutional interpretation that was not of the mindset of the founding fathers, that the nature of the system itself is still sacrosanct. A Tea Party member must think that those same Fore Fathers had the deep wisdom of creating this triumverant of government and its system of checks and balances. In order to remain strict “originalist,” they would be appalled by any move that would violate the thoughts and principles of our Fore Fathers and upset this system of government laid out in our constitution – say one that would affecting the balance of power between two of those branches would surely. After all, those Fore Fathers wrote Articles I, II, and III.
So that brings me back to Sen. Cruz and the pickle he may not have realized he put himself in. Can Cruz be a Tea Party spokesman if he is challenging the original text of the Constitution by proposing the issuance of a law that would alter key elements of the balance of power laid out in our founding document? Is he proposing that the Fore Fathers had ALMOST EVERYTHING right, but this one thing needs a tweak? Does that not open up the door for more modifications from all over the political spectrum? Can the Tea Party endorse an amendment, or a candidate, that seems to challenge the wisdom of the Fore Fathers and the groups literal, originalist interpretation of the Constitution? Can Ted Cruz really call himself a Tea Party member if he actually believes his amendment should be proposed and potentially put into law? Does anybody else have this much fun with nuanced hypocrisy?
Ok, I know the answer to at least one of those.
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