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The Supreme Court: Activism and Abdication

Ulises Jorge

Stephen M. Krason - published on 02/08/14

What's the place of the natural law in the judicial system?

Serious Catholics and political conservatives since the 1950s have strongly criticized the Supreme Court for making public policy and acting as a kind of “super-legislature” to further a leftist socio-political agenda instead of interpreting the law and judging. We have seen such judicial lawmaking on pornography, abortion, legislative reapportionment, sodomy laws, and the list could go on. While this has certainly been a valid and much-deserved ongoing criticism of the Court, cases in each of its last three terms indicate a new, contrary problem: over-deference to the political branches on both the federal and state levels.

In 2011, the Court decided the companion cases of Camreta v. Greene and Alford v. Greene, which concerned whether a child protective system (CPS) operative and a law enforcement official who backed him up could be sued under federal civil rights laws for an aggressive interrogation of a nine-year-old girl — which under international norms possibly constituted psychological torture — to get her to say that her father abused her. Along with many other organizations, the Society of Catholic Social Scientists filed an amicus curiae brief supporting the girl’s claim (I drafted the brief), mostly because we wanted to focus the Court’s attention — as we tried to do over a decade before in the important parental rights case of Troxel v. Granville — on the CPS’s systemic misconduct that in one article I called “a grave threat to the family.” In Camreta and Alford, the Court showed no interest in parental rights or addressing CPS abuses, or even in making their abusive operatives legally accountable in any way for their outrageous actions; it used strained procedural norms to avoid the question. The decision must be understood as simply unquestioning deference to an executive agency, in this case a state one. The prerogatives of government trumped parental rights, the family, and even abusive behavior against children by agencies supposedly set up to stop abuse. It was not entirely surprising, since in Troxel the Court did not think parental rights deserving of the highest standard of constitutional protection. One wonders if the Court kept in mind the insistence of The Federalist Papers that while government needed to have enough power to carry out its rightful responsibilities, it also had to keep itself under control.

In 2012, the Court handed down its crucial decision about the Obamacare law, National Federation of Independent Business v. Sebelius. The Court engaged in legal and intellectual gymnastics to uphold the law. While a majority of the justices agreed that Congress had no power under either the commerce clause — whose broad interpretation has been a major basis for expanding federal power since the New Deal — or the necessary and proper clause to regulate economic inactivity (that is, requiring people to buy health insurance), the Court still upheld the crucial individual mandate. While the text of the law stated specifically that failure to purchase health insurance would incur a financial penalty — the drafters apparently went out of their way to avoid calling it a “tax” — the Court’s majority nevertheless decreed it to be a tax in order to save the law. While the leftists on the Court almost certainly voted to uphold the law for policy reasons—for decades the left has looked to the Court to decree its agenda into existence — Chief Justice Roberts’ deciding vote, which caused many to scratch their heads, probably reflected the tendency of most “conservative” judges and legal scholars to just almost instinctively defer to the legislative. Scalia and the other “conservatives” may have jumped off the bandwagon on this one because of the other central principle of “conservative” jurisprudence: federalism. After all, Obamacare for the first time in a major way got the federal government into insurance. Of course, federalism rightly triumphed when the Court struck down the portion of the law requiring states to expand Medicaid. While conservatives can at times almost absolutize federalism — in contrast to the stress on the principle of subsidiarity in Catholic social teaching, which is more flexible and realistic in acknowledging that activities at times have to go to the higher level — this was a welcome part of the decision, since along with the broad view of the commerce power federal grants-in-aid programs have for decades been the other main reason for the excessive expansion of federal power.

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