It's for the legislature, not the Supreme Court, to decide

A recent article by Professor Aaron Tang, "Hey, Courts: Don't be so quick to ignore political power," unabashedly advocates for judicial activism and laments the day when the U.S. Supreme Court will no longer put their thumb on the scales of justice.

Article I of the U.S. Constitution states that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This explicit provision leaves no room for the Supreme Court or any other government body to rewrite or otherwise amend the Constitution. Such judicial activism is a clear violation of the separation of powers doctrine.

He mentions various groups which need protection from the big, bad legislative process. The legislatures representing the voice of the people are to be ignored and overruled by a small group of elite "lawyers in robes" because they know better.

In his initial barrage against the text and spirit of the Constitution, Professor Tang states that the Supreme Court should simply become the third political branch of the federal government. To the extent that the poor, disabled and gay/lesbian groups require protection, such protection should properly come from the legislatures, not the courts.

It's beyond dispute that the "fundamental task in construing a statute is to ascertain the legislative intent so as to effectuate the purpose of the law." Hassan v. Mercy American River Hospital, 31 Cal. 4th 709. (2003). There exists no exception for the Supreme Court to ignore this universally true holding, except that which the Supreme Court itself asserts, without legitimate authority. The fact that Justice Harlan F. Stone in the 1938 Carolene Products case created a new test for "discrete and insular minority groups" does not render it authentic or correct. It is judicial activism at its zenith and is itself unconstitutional.

The very idea that the Supreme Court should consider the political power of the parties before them helps to explain why the courts are held in such low esteem by the people. Most people are keenly aware that the Supreme Court first decides who shall prevail and then creates the often-convoluted argument to support their decision.

It is not the role of the Supreme Court or any court to "protect" the people from the legislature. In fact in these days of proud judicial activism, it is time for Congress to step in and protect the people from the courts which often-times nullify the votes of millions of people, by inventing "constitutional rights" that no fair reading can find and therefore do not actually exist.

As a much-needed countermeasure to Professor Tang's proposal, Congress should utilize the much-ignored Article III, Section 2 of the Constitution, which states, "the Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulations as the Congress shall make." Hence, consistent with their constitutional authority as representatives of the people, if members of Congress determine it necessary to legislate in order to protect insular minorities, they are certainly free to do so, notwithstanding any concocted test invented by the Supreme Court to invalidate Congress' decision. Congress need only cite Article III, Section 2 as authority for withholding jurisdiction from the Supreme Court to hear the matter.

Professor Tang posits that where the legislature puts their thumb on the scales of justice, the Supreme Court need not intervene. By what authority may the Supreme Court intervene? By "law" not enacted by the people's representatives, but by the Supreme Court without any explicit or implicit authority to do so? How much longer will the people withstand this result-oriented decision process? So if the legislature enacts law which goes against the powerful such as corporations and the NRA, the Supreme Court need not intervene. Astonishing! In other words, the Supreme Court can/may go outside the four corners of the case, ignore the merits of the case, and render decisions, whether or not to intervene, based upon the political power of the parties? Although a hackneyed phrase, this is Orwellian.

In discussing the 2nd Amendment, Professor Tang undoes his own argument, i.e., as a result of the Heller decision, the Supreme Court took the issue from the people and political debate. He continues that it would have been wiser for the Supreme Court to "leave this difficult constitutional issue up to the fully functional democratic process." I submit that he takes this position because he disagrees with Supreme Court's holding that the 2nd amendment protects the individual's right to keep and bear arms as opposed to the collective right of a militia. Had the Supreme Court ruled against the individual right, I suggest Professor Tang would have been pleased with the nine lawyers in robes taking this issue from the people and the democratic process.

In Professor Tang's second argument as a justification for legislation burdening politically powerful groups he states, "those groups have ample resources to invest in research to try and persuade people to their views." To what end? Under his position, the wants/needs of the people are of no consequence. It's a balancing act for the court to determine which of the (necessarily) politically unequal parties is more powerful. Once this is determined, the court will then determine whether the legislation has sufficiently burdened those (necessarily evil) overly powerful parties. It will then ignore the merits of the case and instead place their collective thumb on the scales of justice and twist and distort the Constitution.

All issues should be left to the people to decide through the political process unless the particular issue is clearly, either expressly or by necessary implication, determined by the text or history of the Constitution. If the Constitution is determined to be in need of amending, it must be done by the only authorized method of so doing: Article V. This process, necessarily cumbersome, makes mention of neither the Supreme Court nor the president. Only the people, through their state/federal representatives are authorized to effect these changes.

The assumption, by the Supreme Court, of this de facto amendment authority is the antithesis of what the Founding Fathers intended and Lincoln so aptly stated, "government of the people, by the people and for the people."

As a third argument, the professor cites the Lochner and Dred Scott decisions and the undermining of the peoples' confidence in the Supreme Court as a result, assuming this can be shown. However, he ignores the current low opinion of the Supreme Court by the people as a result of the Roe v. Wade (abortion) and Obergefell (same-sex marriage) cases where the entire free world knows that neither of these "constitutional rights" actually exist in the Constitution.

As stated in dissent by Chief Justice Warren Burger with whom Justices Byron White, William Rehnquist and Sandra Day O'Connor joined in Plyler v. Doe (1982), "The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem ... When the political institutions are not forced to exercise constitutionally allocated powers and responsibilities, those powers, like muscles not used, tend to atrophy."

Justice Burger went on to state, "The exercise of judicial review ... is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility."

The professor concludes that the Supreme Court's judicial activism of devising doctrines and burdens for the parties as a function of their political power is in fact in keeping with the "conservative talking point" of judicial restraint. Might I say, Orwellian again?