I assume everyone has heard of the Supreme Court’s recent Roper v. Simmons decision that outlawed the execution of murderers who commit their crimes before age 18. I honestly haven’t attempted to form an opinion about the Court’s decision, though I tend to side with John Paul II’s disapproval of capital punishment.
I'm more concerned about the Court's rationale. There are numerous problems with it, including this phrase: “To implement this framework we have established the propriety and affirmed the necessity of referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual.” (emphasis added)
Evolving standards of decency and the progress of a maturing society. Those are the Court's standards.
Problem is, those standards aren't standards or, at best, they're vague and shifting standards. “Evolving” and “progress” by their nature mean the target (standard) is moving, and therefore can't be readily measured, if at all.
If the Court is applying standards that don't exist or that can't readily be measured, what basis can the rest of the country use to determine whether the Court is acting judiciously?
The scary answer is, “None.” We have no basis for measuring, hence the growing outcry against a renegade Court that has been (excuse the grade school idiom) bossing us around for forty years now. At least the Court is now pretty much admitting that it isn't applying any constitutional standards and is doing whatever it wants. In the past, they tended to “dress it up,” like the creation of “penumbra” rights under the Constitution that gave us Roe v. Wade.
Does it really matter?
Yes, a great deal. Consider the Court decision in the 1992 case, Planned Parenthood v. Casey. The Court upheld Roe and in the process employed the following rationale: “At the heart of liberty is the right to define one's own concept of existence, of the universe, and of the mystery of human life.”
This “mystery passage,” as it has become known, is confusing at best. What exactly does it mean? How does a state protect such a right? When the Court created the penumbra right of privacy, it came with very real consequences and “protections”: the right to abortion. What consequences and protections flow from the “right to define one's own concept of existence”? It's impossible to say, but this much is clear: This new right is another standardless standard that the Court can employ whenever it wants to reach a desired conclusion.
What right is coming next? “Everyone has the right to be what they want to be”? Sound preposterous? Based on the last forty years, what's to prevent the Supreme Court from enacting that right?
I don't like to use my column for political purposes. I prefer to comment on cultural issues. But the Supreme Court continues to abuse its power and it needs to be stopped. I am encouraged that more people are beginning to get serious about fighting them, so I am throwing my small voice into the dispute, hoping a few more people will become sympathetic to efforts to battle the Court.
Everyone should understand: The fight against the Court isn't quixotic. Although I haven't read the book, I have read enough reviews to recommend Mark Levin's Men in Black (2005). The book recounts the history of the Supreme Court's abuses and methods for stopping them.
Of course, the Supreme Court might try to knock down such efforts as contrary to its naked will (in other words, as “unconstitutional”), and then there would be a show-down between those two branches of government. It wouldn't be the first time two branches have squared off. Presidents Andrew Jackson and Franklin Roosevelt challenged the Supreme Court's hubristic ways; Lincoln was prepared to.
We live in a representative democracy, where the people's vote is supposed to matter. John Paul II, in Centesimus Annus, recited three things that the Church likes about democracy: The Church “values the democratic system inasmuch as it ensures the participation of citizens in making political choices, guarantees to the governed the possibility both of electing and holding accountable those who govern them, and of replacing them through peaceful means when appropriate.” (emphasis added)
The Supreme Court has been undermining all three.
Talk to your congressional representative. The time to challenge the men in black is growing ripe.
© Copyright 2005 Catholic Exchange
Eric Scheske is an attorney, the Editor of The Wednesday Eudemon, a Contributing Editor of Godspy, and the former editor of Gilbert Magazine.
