Last Gasp for the Last Court?

By Steve Elwart

The Supreme Court of the United States was “ordained and established” by the Judiciary Act of Congress in 1789. The Supreme Court Building in Washington, D.C., designed by Cass Gilbert, was completed in 1935. Engraved in stone above the head of the Chief Justice are the Ten Commandments with the American eagle protecting them. Moses is included among the great lawgivers in Herman A. MacNeil’s marble sculpture relief on the East Portico (see above).

Before each session of the Court, the Justices stand before their desks and the crier opens with the invocation:

God save the United States and this Honorable Court.

A series of decisions handed down by the Court during this session makes one wonder if God will save the United States and that “Honorable Court”. The United States is living under conditions which Thomas Jefferson both expected and feared:

“It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary—an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.” — Thomas Jefferson in a letter to Charles Hammond, 1821

Throughout its history, the Supreme Court, the “Court of Last Resort”, has made a series of bad rulings. One of the most infamous rulings handed down was the Dred Scott Decision. The case (known as Dred Scott v. Sandford), involved a slave (Scott) who was taken by his master, U.S. Army Surgeon Dr. John Emerson, from their home in Missouri, a slave-holding state, to Illinois which prohibited slavery. Scott was returned to Missouri. The physician later died and his wife Eliza “inherited” Scott.

After failing to buy freedom for his family and himself, Scott sued Emerson for his freedom in 1847, pleading that because he lived in a free state, he was free and could not be enslaved again. After a series of appeals, he took his case against his new owner John Sanford (Eliza Emerson’s brother) to the Supreme Court in 1857.

The Court’s subsequent decision delivered a double-blow to Scott and the entire Abolitionist Movement. In writing the Majority Opinion, Chief Justice Roger Brooke Taney opined that Dred Scott had no standing to in the court.

Furthermore, Taney wrote that:

• Free Negroes are not citizens.
• The Constitution treats them as property.
• Every citizen has a right to take with him, into any territory of the United States, any property the Constitution recognizes.
• The Constitution recognizes slaves as property and pledges the government to protect it, and Congress cannot interfere with such property.

Only the passage of the Thirteenth Amendment to the United States Constitution, which abolished slavery, erased this blot on the nation’s history.

Major Supreme Court Cases in 2015

The rulings handed down from this session of the court are of such impact they may also take a constitutional amendment to rectify the damage that has been done.

A summary of the well-known and not-so-well known rulings from the Court follow:

Same-Sex Marriage

The court decided in Obergefell v. Hodges and three related cases that the Constitution guarantees a right to same-sex marriage.

In this case, the states of Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. Fourteen same-sex couples and two men whose same-sex partners are deceased, sued in the Federal District Courts in their home states, claiming the respondent state officials violated the Fourteenth Amendment). The plaintiffs claimed that by denying them the right to marry or to have marriages performed in another state given full recognition. Each District Court ruled in the petitioners’ favor, but the Sixth Circuit combined and reversed the cases.

The main questions before the Court were:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was licensed and performed out-of-state?

In a 5–4 decision the Supreme Court upheld all the lower court rulings and found in favor of the plaintiffs.

Writing for the majority, Justice Antonin Kennedy wrote the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was licensed and performed out-of-state.

This ruling caused a firestorm of emotions on both sides of the issue. The first salvo came from Associate Justice Antonin Scalia. (The Justices in the minority were so adamant in their dissent that they all wrote opinions.)

Scalia’s dissent read, in part:

When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. … We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text. … [It] is an opinion lacking even a thin veneer of law.

In his most stinging rebuke in the opinion, Scalia wrote:

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

There are many things wrong with this ruling, among them:

• The court created a new right they “found” in the Constitution. One day this “right” will come in conflict with other, more established rights, such are the Right to Religious Freedom (Can a pastor refrain from performing same-sex marriages?) and Freedom of Speech (Can someone speak against homosexual marriages without being sanctioned for “Hate Speech”?)
• The court, once again, usurped legislative prerogatives belonging to the Congress, another move toward making representative government irrelevant.
• How will this affect people wanting other types of “marriages”? Will this open the door to polygamous marriages or marriages between close family relatives? What will be its effect on laws prohibiting marriage to underage people?

The ruling opens a Pandora’s Box of problems the Court and Congress will have to address.

After the ruling there have been joyous celebrations among those who wanted homosexual marriages recognized. Even other countries celebrated the ruling. There were rallies outside the Supreme Court Building, parades in cites around the world and celebrations into the night. There is even a Facebook page that will apply a “rainbow filter” to your profile picture with the colors of the homosexual movement. Displays celebrating the ruling were erected in many cities across the country.

The most abhorrent display came from the White House where President Obama ordered that the “People’s House” be bathed in the rainbow colors.

The spectacle is reminiscent of Isaiah 5:18:

How terrible it will be for those who parade iniquity with cords of falsehood, who draw sin along as with a cart rope (ISV)

Such a display makes one wonder if it is not too late. Perhaps the United States is entering a period of God’s abandonment of the country.

Romans 1:18–32 provides a good description of what happens when God gives people over to their own desires and basic instincts:

“For although they knew God, they neither glorified him as God nor gave thanks to him. Instead, their thoughts turned to worthless things, and their senseless hearts were darkened. … For this reason, God delivered them to sexual impurity as they followed the lusts of their hearts and dishonored their bodies with one another. They exchanged God’s truth for a lie and worshipped and served the creation rather than the Creator, who is blessed forever. … Furthermore, because they did not think it worthwhile to keep knowing God fully, God delivered them to degraded minds to perform acts that should not be done. They have become filled with every kind of wickedness, evil, greed, and depravity. … Although they know God’s just requirement—that those who practice such things deserve to die—they not only do these things but even applaud others who practice them.” (ISV)

Health Care Subsidies

In the case of insurance subsidies for “Obamacare”, the issue concerned Section 36B of the Internal Revenue Code, which was enacted as part of the Patient Protection and Affordable Care Act (“ACA”), which authorizes federal tax credit subsidies for health insurance coverage purchased through an “Exchange established by the State under section 1311” of the ACA.

The question presented was whether the Internal Revenue Service (“IRS”) may issue regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under section 1321 of the ACA.

The court decided in King v. Burwell that tax subsidies are lawfully being provided in the three dozen states which chose not to run the marketplaces for insurance coverage.

The six justices in the majority concluded the disputed phrase in the Affordable Care Act — “an exchange established by the state” — is ambiguous when read in context, and so can be interpreted in different ways. It does not have to be interpreted literally as meaning no subsidies are available to people in states that have not set up their own exchanges.

Chief Justice Roberts wrote the majority opinion stating:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined— “to say what the law is.” (Marbury v. Madison, 1803) That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

The Court ruled the Congress intended for everyone to be covered by the ACA. By taking away the subsidies it would destroy the act, which was against the intent of the law. Therefore, the law did not mean what was in the clear reading of the text. The majority interpreted the ambiguous phrase in a way that allows the law to work rather than cause an upheaval in the law.

Again, writing the dissenting opinion was Justice Scalia. Scalia and two dissenting justices maintained the disputed phrase in the Affordable Care Act should be interpreted literally. The dissent also accuses the majority of having a political motive, harkening back to the 2012 ruling upholding the insurance mandate provision of the health care law:

Words no longer have meaning if an exchange that is not established by a state is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. … Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

He also wrote:

Having transformed two major parts of the law [the act’s mandate that everyone maintain health insurance or pay a penalty was constitutional as a “tax,” and states were free to reject the act’s Medicaid expansion without losing all of their existing Medicare funding, as the act said they must.], the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

Justice Scalia and the two other dissenting justices argued the Supreme Court should have left it to Congress to decide what to do about the problem.

President Obama wrote in The Audacity of Hope, “I have to side with Justice Breyer’s view of the Constitution — that it is not a static but rather a living document, and must be read in the context of an ever-changing world.”

It is a tempting mindset to embrace and the Supreme Court now seems to have the concept fully in its grip. There is so much about today’s world the Framers could never have expected. They had no inkling the Constitution would be changed to allow for direct election of senators, the unfunded mandates eroding state sovereignty, the size and scope of the federal government, and growth interstate commerce made possible by rapid advances in transportation and telecommunications technology, and subsequent expansion of federal government using that pretext.

Applying the Constitution “in the context of an ever-changing world,” has led this country where it is today. The executive branch has asserted sweeping powers — the prerogative to wage war without Congressional approval, to spy on and imprison Americans without a warrant, to engage in extrajudicial assassinations carried out by remote-controlled drones. James Madison, the author of The Federalist Papers could not have expected any of it. Nor could he have imagined the unprecedented degree to which the federal government would fall into the arms of powerful corporate interests as exemplified by the Wall Street bailouts and the ongoing lobbying culture pervading Washington. The health-care industry is a very potent moneyed interest and the rise of modern medicine gives those who control it more power over our lives than ever before.

Given recent abrogations of civil liberties, the erosion of restraints on federal power, is it prudent or consistent with American ideals of liberty to allow the federal government to exert even more influence over private decisions about health care made by less powerful, decentralized entities?

The United States is a nation founded on the rule of law through representative government. It has morphed into a combination of oligarchy and fascism. The economy and private property are coming more and more under the control of the State, with special interests (business, labor, and special interest lobbyists) playing a commanding part in it.

We are living in a time described in Ecclesiastes:

“I also examined on earth: where the halls of justice were supposed to be, there was lawlessness; and where the righteous were supposed to be, there was lawlessness.” (Ecclesiastes 3:16, ISV)

Many Greek and Hebrew words are used in the Bible to describe sin, but the one that best summarizes the essence of all sin is anomia, “lawlessness”. As 1 John 3:4 says, “Everyone who practices sin also practices lawlessness; and sin is lawlessness.” (ESV) Jesus uses this term when he pronounces eternal condemnation upon the “workers of lawlessness” (Matt 7:23 ESV).

This concept not only applies to Man’s relationship to God, but also his relationship to each other through a system of laws.

Separation of Powers in Foreign Affairs

In another telling decision, the Court decided in Zivotofsky v. Kerry that Congress is not entitled to order the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents requested.

The question before the court:

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.

In this case, the parents of 13-year old Menachem B. Zivotofsky applied for a passport for him and listed his birthplace as “Jerusalem, Israel”. The application was denied since the State Department does not recognize Jerusalem as part of Israel.

On June 8, in a 6–3 vote, the Court ruled the President has the exclusive power to grant formal recognition to a foreign sovereign. This means as long as President does not recognize Jerusalem as part of Israel, the U.S. Government cannot recognize that designation.

This continues a trend throughout U.S. administrations going back to Harry Truman, where it is the official policy of the United States not to acknowledge Israel’s right to claim Jerusalem as its capital.

The United States does not seem to acknowledge God’s promise to Abraham and his descendants:

“I’ll make a great nation of your descendants, I’ll bless you, and I’ll make your reputation great, so that you will be a blessing. I’ll bless those who bless you, but I’ll curse the one who curses you, and through you all the people of the earth will be blessed.” (Genesis 12:2–3, ISV)

The Confederate Flag and Free Speech

The court decided in Walker v. Sons of Confederate Veterans Texas had not discriminated against the view of the group that claimed “the Confederate flag is a symbol of sacrifice, independence and Southern heritage” when refusing to allow its license plate bearing the Confederate flag.

In this case:

• Nine states let drivers choose specialty license plates featuring the Confederate flag and honoring the Sons of Confederate Veterans, which says it seeks to celebrate Southern heritage. But Texas refused to allow the group’s plates, saying the flag was offensive.
• In 2011, not long before the motor vehicles department rejected the plates, Gov. Rick Perry indicated he supported such a move. “We don’t need to be scraping old wounds,” he said. The American Civil Liberties Union filed a brief against the state while an N.A.A.C.P. spokesperson has expressed support for the state.

The questions before the court were:

1. Do the messages and symbols on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality?
2. Has Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light?

In a 5–4 decision, the Court decided that Texas’s specialty license plate designs constitute government speech, and therefore Texas may refuse to issue plates featuring Sons of Confederate Veterans’ (SCV’s) proposed design.

This ruling will resonate through the states as a move to ban the Confederate Flag continues to gain momentum.

There were other rulings from the court, too numerous to cover here. More references are shown below.

These rulings, along with events over the past few weeks stress the peril the United States suffers if it continues to ignore God and His law – a law greater than one any legislature can devise. The judge who will rule on the transgressions of these laws is also greater than any nine people who may sit in judgment of them.