Recently, Supreme Court Associate Justice Ruth Bader Ginsburg has found herself in the news more often than seems appropriate for a justice of the Supreme Court. Aside from being less than sober at the State of Union Address, she has also recently said there would not be enough women on the court until all nine justices were women. But, perhaps the worst was when she commented that she believes American are ready for gay marriage—when the court was still hearing the case.
If a justice wants to play a roll in public policy, they are in the wrong branch of the federal government. Ginsburg’s role on the court should not be one of testing opinion polls, and her personal views on same sex marriage are and should be irrelevant to what the outcome of the case will be. Instead, it should be based on the Constitution. As Justice Antonin Scalia has pointed out, judges are not moral philosophers, and that the job of a justice is to be faithful to the Constitution. The oath of office for a Supreme Court justice begins with, “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States…”.
Unfortunately, progressive judicial philosophies have radically changed the Supreme Court’s proper role. If one accepts that the Constitution is living and breathing, then its language can be twisted into meaning anything one wants it to mean. The Supreme Court then becomes a group of nine unelected policy makers rather than nine interpreters of the Constitution. The reason abortion is legal in this country is not because Congress or a collection of state legislatures passed a law, but rather because the Supreme Court said it was in Roe v. Wade.
It looks like the same think that happened in Roe is about to happen in the same sex marriage debate. The court today rules more from precedent than it does from a constitutional point of view. Precedent has given American political society ideas such as “the Separation of Church and State” and “the Right to Privacy,” both of which are not in the actual text of the Constitution but are instead from separate writings by Thomas Jefferson. The separation of church and state as a judicial concept has been used to protect government from religion, whereas the First Amendment exists to protect religion from the influence of the government. The right to privacy is a non-existent Constitutional right, and this non-existent right forms the basis for another non-existent right: abortion.
Even though Scalia was right to say that judges are not moral philosophers, the previous examples are just two cases where the Supreme Court playing the very role of a moral philosopher. In a country based on the rule of law like ours, we should not have to hold our breath every June while waiting for what the Supreme Court has to say. If the law violates the constitution, then it should be struck down. Justices should not rewrite the English language or any statute to progress anybody’s political agenda or legacy. They also should not strike down a law simply because they do not like it. Just because a justice favors legalizing same sex marriage does not mean limiting marriage to one man and one woman is unconstitutional. The Fourteenth Amendment was originally enacted to deal with race, not sexual orientation, and any intellectually honest person knows that.
The Supreme Court has made plenty of good rulings, but it has also issued a large number bad ones as well. The Court has upheld slavery, segregation, rewrote the definition of commerce, upheld the internment of Japanese-Americans, and forced abortion on the country. Once again, the Supreme Court is prepared to play the roll of policy maker like it did in Roe v. Wade. Supreme Court justices should focus their attentions on the Constitution, and should resign and run for state, local, or federal office if they want to impact the country with their own personal beliefs.
The judiciary is supposed to be separate from the political branches of the government. It is not the job of Ruth Bader Ginsburg to be making legal positions based upon public popularity at a given time. Instead, the role of a judge or justice should be to take their oath seriously, keep their political opinions out of their legal opinions, and let the people and the people’s representatives make policy decisions.