It seems to be a given that the courts have the final say in whether a law, or an executive order, is constitutional, but the reality is not always so clear.
According to a Newsmax report, “on Thursday [8/21], the high court ruled that the Trump administration can proceed with making sweeping cuts to National Institutes of Health diversity, equity and inclusion (DEI) grants.” In doing so, SCOTUS reversed a lower court.
This reversal is a good one, but the problem is that it was necessary because a rogue lower court had defied the Supreme Court, which had already ruled that courts have no jurisdiction in the matter. Indeed, this was the third time that the Supreme Court had made that ruling. Yet lower courts continue to ignore binding precedent.
Associate White House counsel Grace Pastor told Newsmax that “a lot of the justices were complaining that if they don’t follow precedent at the lower court level, it’s going to lead to judicial anarchy.”
“Judicial anarchy” is the key term, because it strongly implies that some federal courts are intentionally violating the Constitution. They do this knowing that they will be overruled, knowing that they have no authority to force the Executive to spend taxpayer money on grants. Yet they continue to violate the law which they are sworn to uphold. The Judiciary are referees, not legislators, but they seem not to accept their limited role, and they issue royal edicts in opposition.
Why do they do this, knowing they will be overruled? Is there a method to their malice?
I suspect that there is. They are setting precedents. By repeatedly setting out in writing their arguments against executive powers, they are building up a future case in which they can usurp the Supreme Court, particularly if the membership of that body is altered, however that might come about.
So far, the administration has weathered the numerous storms imposed upon it by activist judges, who would impose their personal opinions on what executive policy should be. So far, the administration has relied on the Supreme Court coming to the rescue. That reliance has its limits, however, because relief often takes enough time to materially impede lawful policy. Justice delayed is a deliberate tactic.
One can foresee that the day will come when timely execution of a presidential order will be of the utmost consequence. On that day, some pipsqueak in robes will arrogantly attempt to overrule the Executive. It may be in matters of national defense, or in the implementation of some controversial social policy matter which today is as unpredictable as was the transgender movement before it expanded into a large political issue.
Some judge may draw up his own national policy priorities and command the president to act accordingly. He may attempt to bar the president from taking military action, or requiring him to take that action. More likely, it will involve natural resources, environmental impact, economic justice (such as reparations), crowd control during massive riots, a social experiment on children — the possibilities seem endless.
If the trend toward judicial overreach continues, if it meets with some political success for parties whose purposes are adverse to American interests, then at some point, the president will have to defy a renegade court.
That, in turn, will generate a constitutional crisis of proportions not seen since the 1861 secessions of the Confederate States.
The time is now for the Supreme Court to prevent all that. Instead of reacting passively and piecemeal to the violations of lower courts, the Supreme Court must go on offense. It must either remove the rebellious lower court judges or implore the Congress to abolish those courts and replace them.
After all, this is what the lower courts seem to be doing regarding SCOTUS.
Image: Joe Ravi via Wikimedia Commons, CC BY-SA 3.0.
