Msgr. Charles Pope: Supreme War: A Reflection on the Battle for the Supreme Court

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Subsidiarity matters. It is not merely an arcane Catholic or sociological principle.

By Msgr. Charles Pope, July 6th, 2018

We are already seeing a great battle unfold over the Supreme Court in our land. At one level the battle is “all about abortion” which the left sees as almost a “sacrament” or sacred honor, and the right sees as the most immoral and legally flawed decision ever handed down by the court (Dred Scott not withstanding).

Count me among the right in this matter. No one can reasonably refute the fact that Roe v. Wade has resulted in the death of over 50 million children. That anyone supports this right to kill cannot avoid withering contempt as a position. The medical evidence is clear: abortion is the killing of unique human persons. These infants have done nothing morally wrong, so they are innocent. There is simply no other reasonable conclusion. Abortion must be opposed for the lie and the evil it is.

But while abortion will head the list of concerns on both sides, it is also the symbol of a far wider agenda involving other issues such as euthanasia, marriage, family, sexuality and religious liberty.

But why has the Supreme Court become the locus of political battles? Of all three branches of our government, the judicial branch is supposed to be the least political. But, not only has it become politicized, I would argue it has become the actual center of political power in this land. Something is deeply wrong here, and all the storm and noise illustrates that almost nothing succeeds politically if the Supreme Court is opposed.

I am a Catholic priest. You do not read my offerings to learn of constitutional law or political science. But while I write of a concern over government, I also write of a Catholic principle: subsidiarity.

Subsidiarity as a Catholic principle is rendered:

The teaching of the Church has elaborated the principle of subsidiarity, according to which a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good. (Catechism # 1883)

It seems clear that the balance of power set forth in our system has shifted steeply toward the judicial branch, and ultimately, to the Supreme Court. Hence the principle of subsidiarity, which should not be needed, now applies here. Yes, the executive and legislative branches have strangely ceded much of their power to the “High” Court and to the judicial branch in general. When a Supreme Court decision comes down, presidents and legislators and citizens either celebrate or bow their heads and say, “I guess this is now the ‘Law of the Land.’”

The legislative branch was supposed to be the branch tasked with making the “law of the Land.” Indeed, I am rather surprised that the legislative branch has not been more combative in resisting their increasingly subservient role to the nine unelected justices just across the street from the U.S. Capitol.

Something tells me that sloth is likely a big part of it. Crafting true legislation requires a lot of work, and the amassing of support and voter buy-in. There are compromises and trade-offs in the process. It is hard work, not only for members of congress, but also for the groups who seek to establish their views in law. Amending the Constitution is even more work, requiring whole states to agree to the amendment. It is a lot of work to be sure, and the outcome may be very uncertain, or the results very compromised. So even legislators and lobbyists seem willing to shed some of their power for the simpler route of convincing local judges or federal courts or even nine “supremes” of their views, and having them legislate by judicial fiat.

Legal and political experts tell me the rise of the nine Supremes can be traced to the Marbury v. Madison case of 1803 which established the principle of judicial review in the United States, so that American courts have the power to strike down laws, statutes and executive actions that contravene the U.S. Constitution. At some level judicial review seems like a good thing to an ordinary citizen like me. Congress or the president can overreach and suspend or violate our obvious constitutional rights. But I suppose, like many things, judicial review has become unbalanced and set its sights on less-than-obvious violations of constitutional rights. There is also the problem of the court simply establishing or inventing constitutional rights.

For example, the Roe v. Wade decision, finding no obviously constitutional right to kill a child in the womb, established one, claiming it was in the “penumbras and emanations” as set forth by the Griswold v. Connecticut case of 1965. Never mind that all this is very vague. This is where we are today at the federal level. Federal judges get to strike down laws and order actions. They do not merely remand the case to legislators for a fix — they often make the fix and order compliance.

If this were merely the case for arcane federal statutes, perhaps it might be tolerable. But instead it is also about some of the most wrenching and definitional issues of our culture: abortion, euthanasia, “gender,” health care and marriage. At lower federal levels one judge can compel recognition of groups and actions that offend the sincerely-held and once-ubiquitous beliefs of countless Americans.

And, if the Supreme Court deigns to hear appeals, nine unelected officials get to decide what marriage is, who can kill a child in the womb or engage in physician-assisted suicide, or compel women to admit biological males into their locker room merely because he says he identifies as female.

And in a way, it is even worse than that. It hasn’t really been nine justices who get to decide. In our currently divided court, it is really just one man, Justice Anthony Kennedy, who just announced his retirement. He has been arguably the most powerful man on the planet — more powerful than the president, more powerful than any member of congress or the whole congress itself. The four liberals and the four conservatives usually canceled each other out. It all came down to Anthony Kennedy. Yes, one man has called the shots for years.

All of this violates subsidiarity and accountability. We are in an era where the courts have largely eclipsed the legislative process.

The “high” court should not be the final legislator in this land. Judicial review would seem to be an assisting function, as the principle of subsidiarity above articulates. Determining that a proposed or existing law has constitutional concerns should be the opportunity to return the matter to legislators for adjustments, fixes, or elaboration and further review. Crafting law should be the work of elected officials who are accountable and must work in the existing public discourse, however divided or contentious it may be. This allows necessary debate, compromises and consensus to be reached. It also requires groups that demand sweeping social changes to effect it the old-fashioned way — by garnering public support for their views, rather than seeking to have it imposed by judicial fiat.

Currently there is panic on the left over the mere retirement of one justice. They see their entire world as dependent on one man. Just one. This is unhealthy for all of us. Nothing so serious in this land should depend on nine unelected people — and certainly not on a single person! But too often it does. The left knows this, as does the right. The Supreme Court increasingly looks like the pantheon, and the judges act like gods — getting to say who can live or die, what marriage is, and so forth.

I admit, I am glad that it is the left that is in agony this time. But it could just as easily have been the right. Either way, there are going to be some very ugly moments in the days and weeks ahead — perhaps even violence. It is all evidence of a system that is broken, tilted excessively toward the courts, and swaying in the winds of political discontent. We have increasingly surrendered our power to unelected judges and don’t know the way back out. We all play the game, and the game and the stakes have gotten higher.

To state the problem once more in terms of subsidiarity: “a community of a higher order routinely interferes in the internal life of a community of a lower order, depriving the latter of its functions.” The executive, legislative and judicial branches should be of equal power. But that is not realistically the case today. The judicial branch is of enormous and overriding power compared to the other two, and their functions are increasingly hindered. Further, federal law and policy too easily eclipses state and local law.

So subsidiarity matters. It is not merely an arcane Catholic or sociological principle. How to re-establish it in our broken land is well above my paygrade or ability. Meanwhile, this latest round of war commences. There is no option — we must fight hard for a pro-life justice to be appointed, and fight we will. But somewhere we should all remember that the intensity of this battle already begun comes from the unhealthy reality that too much depends on too little, and too few. Nine unelected officials have attained too much power.

Subsidiarity and balance of power! Please!