you can do anything around here with 5 votes

[Intramuralist Note: Today features Guest Writer #5 in our annual summer series; the opinions expressed may or may not be held by me, but I value the writer’s expression and their commitment to respect…]


Every year on January 22, throngs of people march up Washington’s Constitution Ave., past the United States Capitol, and improperly demonstrate in front of the Supreme Court Building, yelling and screaming either their opposition or support for abortion rights and the Roe v. Wade decision that established them. This exemplifies everything that is horrifically wrong with the American judicial system.

SCOTUS, the Supreme Court of the United States, does not make laws. Congress makes laws. But these demonstrators stride right past Congress on their way to the Court Building. If they were doing their job properly, the Supreme Court justices would not pay any attention to what these people yell and scream. But they do.

Just look at the media. With the retirement of Justice Anthony Kennedy, CNN, CNBC, The Huffington Post, Politico, and The Hill are each reporting that “64% of Americans support the 1973 Supreme Court decision that legalized abortion” and  “they would not like to see it overturned.” NBC now claims it is 71%.

This is completely irrelevant. It is not the Court’s job to pass laws that people want. That is Congress’ job, which is why our Congressmen and women are elected by the people. It is the Court’s job to determine if those laws are Constitutional, or to interpret them if they come under dispute.

This is basic civics. According to Article I of the Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Article III says, “The judicial Power of the United States, shall be vested in one supreme Court, and…shall extend to all Cases, in Law and Equity, arising under this Constitution.” Lastly, in the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Though controversial, let us use the abortion issue as an objective example. Reasonable people can have different opinions about abortion, and it is not my intent here to argue for or against it. But there clearly is no right to an abortion in the Constitution. Harry Blackmun based his Roe opinion on the “right to privacy” in the Fourteen Amendment. Read the Fourteenth Amendment. The word “privacy” is not there. These are the words upon which the Court based their decision: “No state shall… deprive any person of life, liberty, or property, without due process of law.” At face value, those words would seem to support life more than choice.

Furthermore, Blackmun made up an admittedly arbitrary trimester framework where in the first three months, the decision lies completely between a mother and her doctor, the second three months laws can be passed only related to the mother’s health, and in the last three months, the state’s interest to protect the unborn becomes more compelling. While that may be the most brilliant compromise ever decreed since Solomon suggested cutting a baby in half, where in the world does the Constitution say anything about trimesters?

To have a staunch position on Roe, you have to read it. It is an opinion so devoid of solid foundation that it took Justice Blackmun 51 pages to explain it. There is not a single sentence in it that qualifies as a legal argument. He simply wrote his personal opinion about why he thought this would be the best way forward, then tried to justify it.

He may have been right. But that was not his job. Supreme Court justices are not wise old sages to be consulted for their wisdom on difficult issues. They are to determine whether laws passed by the legislative branch are Constitutional. Their personal opinions are irrelevant, even worse for them to be imposed upon us.

Justices quote other cases, which is appropriate, considering the importance of legal precedent. But sometimes they quote other writings of legislators who passed laws to help define what the laws mean. The problem with this is that the legislative process involves a countless number of compromises, and regardless if one side wrote about their personal opinion in some other context, only the words in the legislation that were agreed upon when the law was passed should be law. The infamous “separation of church and state” principle, for example, came from a personal letter of Thomas Jefferson’s. Thomas Jefferson’s personal letters should have no more force of law than Donald Trump’s tweets.

When justices are not bound by the words of The Constitution in their authority, they can do whatever they want. Sitting Justice Stephen Breyer is on record saying that the “Court cannot do its job without a careful understanding of foreign law and practice.” What do other countries’ laws have to do with the American Constitution? Do any of us want to be ruled by other countries’ laws? The late Justice William Brennan was even more transparent when he candidly remarked, “You can do anything around here with five votes.” That was a man who believed there were absolutely no limits to his authority.

Therein lies the problem. When SCOTUS issued its opinion on Roe, there were 32 states that banned abortion, 14 that restricted it, and 4 that had repealed bans that were previously in place. That’s how the democratic process works. Elected officials, accountable to the electorate, pass laws and sometimes repeal them. And the Tenth Amendment clearly says that all powers not given to the United States by the Constitution are reserved to the states. So when five or more justices think they know better based on any reasoning whatsoever except for what the Constitution says, that is not democracy. They are overruling the democratic process, throwing out democratically passed laws. That is dictatorship, or in this case, oligarchy, “a form of government in which all power is vested in a few persons.”

As one legal scholar put it, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”

Back to Justice Kennedy’s retirement. There are factions of society that would have you believe that this is the end of the world as we know it. Why? Because there is a long list of initiatives that in spite of not surviving the democratic process have been imposed by doing an end run around the legislative branch and getting five justices to dictate them upon us.

You may be happy with the results of the Court’s edicts thus far, but what if you were not? When Congress passes laws we do not like, we can vote them out. When SCOTUS dictates their personal opinions upon us, we have no recourse.

If Roe were overturned, that would not outlaw abortion in America. What it would do is properly return that decision back to the states. The issue could be debated, and rightly so. And officials who are elected by their people to represent them could make whatever decisions they want.

That is democracy. And that is what America is supposed to be.



a too often used title…

Oh, the games people play…

(Did I not say a too often used title?)

There’s a vacancy on the Supreme Court. I really, really hate to say this, but I tend to think that an open seat evokes the worst in us… especially in the establishment, so-to-speak.

On a February of 2016 morning, sitting Justice Antonin Scalia was found unresponsive. He was at a Texas ranch, and reportedly died in his sleep. His death was considered shocking and tragic.

Then Pres. Obama did what all sitting presidents are called to do; he nominated a successor.

The succeeding nominee was D.C. Circuit U.S. Court of Appeals Judge Merrick Garland.

The Republicans, who at that time had a majority in the Senate — the confirming body for Supreme Court justices — refused to hold any hearings on the prospect of Garland’s confirmation. Insisting that the next elected president should fill the vacancy (which albeit, seemed a colossal long-shot at the time), they ignored the Garland nomination.

Oh, the games people play…

With the closing of the recent Supreme Court session, Justice Anthony Kennedy announced his retirement. At age 81, the ending of his tenure was not unexpected, as it had been rumored for months.

Then Pres. Trump did what all sitting presidents are called to do; he nominated a successor.

The current, succeeding nominee is Judge Brett Kavanaugh, who also serves on the D.C. Circuit U.S. Court of Appeals.

The Democrats, who at this time are a minority in the Senate — rushed to denounce the nomination. In fact, they denounced the nomination before they even knew who it was.

Oh, the games people play…

Friends, I realize this will be one of my more unpopular posts. We are not very fond when a group we identify with or typically support is highlighted as having behaved in an unscrupulous manner. The reality certainly seems as if two men of integrity were/are being opposed by established parties acting with a lack of integrity.

The role of the Supreme Court — the highest federal court in the land — is to determine what is — and is not — constitutional. That’s it. It’s really that simple.

And yet our legislators — on both sides of the aisle — are playing politics with who sits on that court.

Yes, I hear you…

Oh, you don’t understand…

The reason they acted this way is because of ______  [your choice — fill in the blank]…

Yeah, but they did it first…

And the schoolyard retorts remain in full refrain.

Note some of the votes of those before them…

  • Ruth Bader Ginsburg, confirmed 96-3…
  • John Roberts, confirmed 78-22…
  • Sonia Sotomayor, confirmed 68-31…

Many were confirmed unanimously — Scalia and Kennedy included. Certainly, political differences existed, but integrity was still intact. 

I desire something better, friends. Something purer. I care less about ideological agreement than about integrity in the process.

Currently, I’m not sure I see that in either established party.

Oh, the games people play…

Now whether or not we can identify more than one of the game players…



supreme decisions

sky and columns of supreme court building in washington d.c.As told by the Supreme Court Historical Society…

“I thought they would, well, talk Latin or something.”  The visitor had heard argument at the Supreme Court for the first time.  On another occasion, a high-school student reported “shock” that a black-robed Justice would rock in his high-backed chair and actually laugh out loud…

To its majestic setting and moments of sheer ritual, the Supreme Court brings its distinctive manner of working in public—by listening to one lawyer at a time and asking tough questions.  Its atmosphere mingles informality with dramatic tension. In a city of bureaucracy, it keeps the directness of a group of nine.  It cherishes its courtesies.  But formality, courtesy, and dignity are not empty custom; they are vital to colleagues who are compelled to disagree publicly in print, expressing their deepest convictions, but always respecting the equally deep convictions of their fellow Justices.

Dare I thus humbly submit — based on that last statement — that the Supreme Court and the slightly-less-popular-often-more-sarcastic Intramuralist have a common goal:  respecting the deep convictions of another.

In a government system of three equal branches (note to the current Congress and President:  much to your obvious dismay, neither of you trump the other), the Supreme Court was established by the Judiciary Act of 1789, as called for by the Constitution.  Consistent with their long history, yesterday, on the final session of their 2013-14 term, the high court released the following decisions with significant implications…

In BURWELL v. HOBBY LOBBY STORES, INC., the Supreme Court rejected the administration’s argument that the owners of companies forfeit all protection under the Religious Freedom Restoration Act, ruling that Obamacare’s mandated provision of perceived abortifacient methods conflicts with the faith of the proprietors.  As written in the majority opinion by Justice Samuel Alito, “Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate ‘substantially burden[s]’ the exercise of religion… We have little trouble concluding that it does.”

In HARRIS ET AL. v. QUINN, GOVERNOR OF ILLINOIS, ET AL., the Supreme Court determined it is a violation of the First Amendment to force non-union members — in this case belonging to an Illinois rehab service — to pay union dues, thereby subsidizing the speech on matters of public concern by a union that they do not wish to join or support.  As also written in the majority opinion by Justice Alito, “The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union,” reversing the judgment of the Court of Appeals.

Resist being lured into thinking a decision is foolish or wise because of who or how your emotional strings are tugged.  We have to learn to discuss and solve absent the bias and disrespect.  A prudent first step for each of us would be to read the court’s written opinions as opposed to reacting instantly, emotionally — typically not fully understanding the totality of the arguments.

The bottom line in these two cases contains a common thread; what violates our First Amendment?

In other words… how far does religious freedom extend? … for persons? … for proprietors?  What’s the relationship between one’s religious beliefs and being incorporated?  Also, how far does freedom of speech extend?  … can unions force the payment of dues if that payment then subsidizes issues with which we disagree — issues we would never choose to subsidize?  When does forced compliance violate our constitutional rights?

And one more question:  are there places — most likely due to passion or unchecked emotion — where we’re a little blind?  … where hypocrisy within our opposition or support may also be a common thread?

Just asking…

Respectfully, of course…


defense of what?

Let’s face it.  This is a tough issue.  What is marriage?


I mean it.


Where’d it start?

Who ordained it?

What’s the purpose?


Contrary to the politicized, popular belief, the gay and lesbian persons in our communities are not any new kind of super-villain.  Contrary, too, to the polar opposite, politicized, popular belief, the evangelicals in our neighborhoods are not holders of hatred and wishers of evil.  The reality is that each is a group of individuals attempting to follow a way that seems right to them.


But funny how we work sometimes.  We aren’t always ok with allowing others to seek the way they currently feel is right — especially when that path is the opposite of what we embrace.  So many on all sides (even those who consider themselves highly intelligent) prefer squelching opposing paths and opinion.


So where is the conversation?  Can we discuss what marriage is about?


The discourse is certainly not being currently held on Facebook or on any social cyber-space site (which in my opinion, may be the final frontier of where arrogance is still both lavishly practiced and praised).  Those one-liner status updates on all sides of the issue are not helping, friends.


Where is the conversation?


What’s the purpose of marriage?


Was it established by the organized church?  If so, then what role does the government play in offering any definition?


Also, for those who stand by the historical tradition of one man and one woman united in holy matrimony, where is the respectful conversation regarding how pathetic (sorry, I truly mean no disrespect), but yes, how pathetic some of our heterosexual cultures of marriage have become?  What have we taught and accepted in regard to addiction, adultery, absent fathers, divorce, pornography, etc.?  Yes, some of us have been in some tough situations.  I’m only asking what are we teaching?  And when we teach and encourage, do we do so with a truth and grace applicable to all?


Men are called to cherish women; women are called to respect men; it’s wise that we both cherish and respect one another.  But we get angry or hurt and then feel justified in withholding one of those actions.  Then the so-called, damaging ‘crazy cycle’ begins.  That cycle — regardless of gender — also seems to clash with any concept of a God-honoring marriage.


Friends, I do not know all the answers.  I know that there are good people on all sides of this debate; many, too, remain somewhere in the middle.  My desire, no less, is to engage in a humble, respect-filled conversation where we quit assuming all who feel differently than us are either ignorant or evil.  Some of the cheers and chants and status one-uppers — while perhaps fun to pen — do not help the conversation… and they do not create positive dialogue.


Hence, here’s the question:  what is marriage?  What is worth defending?


Perhaps if we started there — with listening and respecting replacing boasting and chastising — we would influence others in a way that not even the Supreme Court can.