The Supreme Court is supposed to be a neutral arbiter, interpreting the law as written. As Chief Justice John Marshall wrote over 200 years ago in his opinion for the Court in Marbury v. Madison (1803): “It is emphatically the province and duty of the Judicial Department to say what the law is.”
Now, after nearly a century of liberal political activism from the court, the Left wants to take the judicial branch back by any means necessary.
In July, the Biden-Harris administration released a plan calling for changes in law that would overturn the Supreme Court’s presidential immunity ruling, set term limits for Supreme Court justices, and impose an external code of ethics on the court. According to Sen. Sheldon Whitehouse, Vice President Kamala Harris’ campaign has indicated that their candidate’s views align with his bill that would totally restructure the court, allowing new appointments every two years and demoting justices to handling mostly less important cases.
In the Supreme Court’s infamous 1973 Roe v. Wade decision, the majority overturned 50 state laws and created a “right to abortion.” Roe took the issue of abortion out of the hands of the people’s representatives.
The Left then accused the court of political activism for its 2022 Dobbs v. Jackson Women’s Health decision overturning Roe v. Wade, which returned the authority to regulate abortion to the states and to the American people.
In Roe, the court turned the pro-abortion position into federal law. In Dobbs, the court could have — but did not — do the same for the pro-life position, despite the fact that the constitutional argument for the right to life is compelling while the constitutional argument for the right to abortion is fabrication.
This July, the court overturned its 1984 decision, Chevron v. NRDC. In Chevron, the Court directed federal courts to cede their constitutional responsibility to interpret the law to unelected and unaccountable administrative bureaucracies. When the Court overturned Chevron in Loper Bright v. Raimondo, the Left accused it of claiming more power for itself. In reality, all it was doing was reclaiming its basic constitutional function from unelected bureaucrats.
Similarly, as South Texas College of Law Houston professor Josh Blackman has explained, the court easily could have, but did not, overturn the FDA’s approval of the abortion drug mifepristone. As Advancing American Freedom has argued repeatedly in amicus briefs, the FDA’s approval of the abortion drug and its subsequent removal of protections for the prescription of that drug were illegal and completely disregarded the health and safety of women and the unborn. The court, though, found that the doctors challenging the drug had not shown that they would suffer harm and thus could not bring the case.
In the 2022 term which saw the downfall of legal affirmative action, only six of the courts dozens of cases were decided 6 to 3 along party lines. The public’s view of the court, which according to Pew Research is near a three-decade low, is not the result of the court’s partisanship but the Left’s dishonest campaign.
When the Left calls for “court reform” to “depoliticize” the court, don’t be fooled. What they want is an unchecked second legislative branch under their control again.
AAF has filed seventeen briefs urging courts to overturn Chevron, thirteen pro-life briefs, and, recently, the first of what is likely to be many briefs supporting challenges to the privacy violations of the SEC’s illegal surveillance of ordinary Americans.
We want to see the federal government constrained both to the powers it is given in the Constitution and by the structure that the Constitution creates.
We want to see revitalized states empowered to protect the rights of the people.
We want the court to police the powers of the three branches of the federal government and apply the law as written — no more and no less.
Marc What is the General Counsel for Advancing American Freedom.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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