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Korobov: Ruled by the judiciary

BY MICHAEL KOROBOV | FEBRUARY 17, 2015 5:00 AM

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The concept of “pregaming,” or drinking before an event or gathering, is certainly not a foreign one for Iowa students. Apparently, the act is familiar to the Supreme Court as well.

Immediately after the State of the Union Address, images began to surface of Justice Ruth Bader Ginsburg slumped over in her seat, bowing her head down during the president’s speech. It wasn’t until last week that she revealed that she “wasn’t 100 percent sober” during the speech. By her own admission she just couldn’t resist “the very fine California wine.”

This hasn’t been the only bizarre statement to come out of the 81-year-old juror throughout her career. Earlier this month, she remarked that “people ask me sometimes, when — when do you think it will be enough? When will there be enough women on the court? And my answer is when there are nine.” In essence, only an all-female Supreme Court would satisfy Ginsberg.

Perhaps she wasn’t 100 percent sober then as well.

Most business executives would be fired for showing up drunk and falling asleep during a major event. Yet somehow, one of the most influential decision-makers in the world gets away with it. Americans need to start thinking more seriously about how much power the Supreme Court really has.

Many believe that the Supreme Court has assumed much more authority in recent years than it was ever intended to have.

Mark Levin, the host of a syndicated radio show, wrote in his book The Liberty Amendments that “the reason the framers did not specifically grant to the Supreme Court the much broader authority to judge the constitutionality of federal laws is that there was a strong sentiment that such a function was well outside the authority of judges.” To allow the Supreme Court to overrule federal legislation gives the nine justices an inordinate amount of power over nearly 320 million Americans.

In his older age, Thomas Jefferson, an author of the Declaration of Independence, grew more and more wary of judicial power. He wrote “to consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” I wonder how he would feel now.

Consider, for example, when the individual mandate of the Affordable Care Act was brought before the Supreme Court. Representing the majority opinion, Chief Justice John Roberts concluded that the individual mandate was not constitutional under the Commerce Clause, but could pass when interpreted as a tax. The drafters of the legislation, however, disagreed. President Obama stated that it was “absolutely not a tax increase.” This means that the Supreme Court assumed the authority to interpret legislation in a way that the original writers didn’t even agree with.

There is a philosophical divide among the nine justices even today as far as what their roles really entail. There are justices, including Ginsburg, who believe that they should use their authority to bring about policy changes that they believe are right for the country, regardless of the Constitution. Writing about sexual equality, Ginsburg wrote that “boldly dynamic interpretation, departing radically from the original understanding” of the Constitution is sometimes necessary. She is not the only one with this outlook.

Levin offers several solutions in his book to curtail the authority of the Supreme Court. These include enacting term limits for Supreme Court justices and allowing Congress to override the court’s opinion with a three-fifths vote.

At the end of the day, Supreme Court justices are human, too — and if we grant nine individuals in black robes the power to make decisions for all of us, we risk becoming the oligarchy that Jefferson warned us about.


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