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By Scott Tibbs, August 29, 2018
A guest column (paywall) describing how the author was up at night worried about the nomination of Brett Kavanaugh illustrates the entire problem with how we view the Supreme Court.
The author is worried because if ObamaCare goes away, she might not be able to afford health care. But while there was plenty of discussion of policy in the guest column, virtually no attention is given to whether or not ObamaCare is actually in line with the U.S. Constitution. The mentality of the guest column is that the Supreme Court is a super-legislature that will protect good policy, strike down policy. Far too often (as with the Obergefell decision in 2015 and Roe v. Wade itself) the Supreme Court actually makes policy.
This is not the way it should be. The Supreme Court should never be deciding policy. The Supreme Court should decide disputes over the law, based on the text of the law itself and/or the text of the Constitution. The personal policy preferences of the judges should have nothing to do with it. And despite what one of Sonia Sotomayor would say, someone's skin pigmentation or genitals should have nothing to do with reading the text and understanding what the text means.
This is why conservatives need to hammer home the principle that the courts should not be making policy, only interpreting the text as written. The only thing outside of the text that should be considered is the historical context of when the text was written, but only because it helps to understand the meaning of the text. We have to educate the American people that the courts adjudicate disputes over the text, and do not make policy. As it is now, our constitutional republic is dead and has been dead for generations. Our system of government has been replaced by a judicial oligarchy. We must discipline the judicial branch (including impeaching renegade judges) and drastically reduce the power of the judiciary.
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