Week of 03/15/1999

Constitutional Negligence
Supreme Court Justices Let Too Many Get Away
- by David Matthews 2

"Let Stand Without Comment."

You’ve probably seen that statement often in reference to the US Supreme Court. It is perhaps the most frustrating statement that the nine justices can make to anyone who supports freedom.

The US Supreme Court, as the highest branch of the judiciary, serves as what many consider to be the ultimate arbiter of what falls within the Constitution of the United States. It is often their voice that serves as the last word on whether or not a law or regulation should even exist.

You’ve probably heard the old saying about taking a case all the way to the Supreme Court, right? Well, unfortunately, most of the cases that are appealed to the Supreme Court never even make it to the nine justices to review. The sheer volume of cases presented to the justices in any given year means that they have to pick and choose which ones they will hear. Most of those decisions fall to the faceless and nameless group of law clerks who work for eight of the nine justices. (Justice John Paul Stevens is the only one who still looks at every case himself.) Those lucky few that survive then go before the justices to decide for themselves which cases they will hear. At least four justices must agree to hear the case before it goes for a full review. The rejected cases are simply deferred back to the last judgement rendered by the lower courts. In other words, they "let stand without comment."

Contrary to popular opinion and the media, when the justices refuse to hear a case, they are neither for nor against that issue. It simply means that they thought the case didn’t warrant their attention at the time. Sometimes it is because they have already decided on the issue and are not willing to give it a second look. Other times, they may feel that the issue isn’t worth reviewing at that time, but perhaps they will review the issue in a later case. But there really is no way of knowing because the bulk of cases don’t even make it to the justices themselves.

Unfortunately, you might be seeing that discouraging comment more often. The justices have decided that they will not be reviewing as many cases as they have in the past. Court watchers believe that this will discourage the insanely high volume of appeals presented to them. I guess time will tell if that theory works.

The decision to hear fewer and fewer court cases is also causing another problem - it is hastening the erosion of individual freedoms.

Remember that the Supreme Court serves as the final word as to what does and does not violate the Constitution of the United States and its subsequent amendments, and while the nine justices have decided to slack off on the number of cases they will hear, the other two branches of government have INCREASED the number of laws and regulations designed to micromanage the rest of the country. Some of those laws violate individual freedoms. Some laws are in blatant defiance of past Supreme Court decisions. Add to that the laws that are passed by fifty state legislatures, and the ordinances passed by local governing branches in each of those fifty states, and you end up with a ton of new laws and new regulations and more infringements on individual freedoms. That means more lawsuits and more appeals, not less, and the chances are that freedom will be left in the wayside increases because the justices don’t want to deal with them.

This kind of action borders on what only can be considered constitutional negligence on behalf of the judiciary. It is bad enough we have both the legislative and executive branches that either ignore individual freedoms or blatantly defile them, but to have the judiciary acquiesce to the abuses with their indifference is just as bad.

I understand, of course, that the legal system is about as speedy as I-285 during rush hour, and about as exciting as sitting through rush hour traffic. My college advisor was right from the beginning - the law is incredibly dry. But that should never detract from the utter reality that the judiciary is that last line that prevents America from resembling a demented version of Stalin’s Soviet Union.

So if the justices want to cut down on the volume of appeals, sticking their heads in the sand is not a viable option. If they are serious about wanting to preserve freedom while cutting down on those appeals, there are some simple steps that can be taken.

First, the judiciary, from the Supreme Court on down to the local traffic court judge, need to treat individual freedom as the rule, not the rare exception. The state of Alabama, for instance, recently passed a law that banned so-called "marital aids," and rationalized the existence of that law in court simply because they can make such a law! That kind of thuggish attitude is precisely why our court system is burdened with such lawsuits, and if the legislative bodies were told that they can’t just pass any law they wanted to on a whim, they wouldn’t be so flippant about it. Much like the burden of proof rests with the state in criminal prosecutions, so too should the burden of justifying a law that limits individual freedom, no matter how slight that limitation, rest heavily with the state.

Second, the US Supreme Court should reconsider their decision about "sovereign immunity" - that tyrannical doctrine that says legislators are immune from prosecution for their actions as legislators. Some of the most anti-freedom (and anti-American) pieces of legislation have come down the pipe since that 1998 decision because the legislators know that they themselves cannot be held personally responsible for their actions. The politicians don’t want to be held responsible for their actions, but they hypocritically demand that you, the American citizens, do.

Third, there should be an automatic sunshine rule in regards to legislation that does not concern the major felonies such as murder, rape, robbery, or fraud. If the state cannot justify the continued need for such legislation after a certain period of time, that law is automatically considered unconstitutional and removed from the books. That would eliminate a lot of so-called "blue laws" that the legislature cannot remove without invoking the political wrath of the moralist minority.

For years now, the chief justice of the Supreme Court has warned Congress against trying to federalize and micromanage every social problem. They have repeatedly ignored those warnings, and instead have opted to react like Pavlovian dogs to the whims of the special interests in restricting individual freedom. Unless the Supreme Court is willing to take a stand for the individual, the other two branches of government will continue their abuse of power.