The Supreme Judiciary: Schiavo Died – the Modern Court System Should Suffer Same Fate

by: Steve Yuhas

At 9:03 on Thursday morning the judiciary became the most powerful branch of government in the United States of America despite the intention of the Founding Fathers for it to remain the weakest.  The fight to stay alive for Terri Schiavo ended after two weeks of being denied food and water following a dramatic fight in the courts between her “husband” and her parents who simply wanted to keep their daughter from being starved to death.  Now the fight over whether or not the United States will be governed by our elected representatives or the unelected judicial branch must begin.

Many politicians said they wanted to save Terri from the horrible death that she would suffer (we don't starve animals or criminals to death and doing it would land a person in jail for years, but the judiciary did it with the stroke of a pen).  After the courts ordered her feeding tube removed politicians insisted they were powerless, unfortunately for Terri the politicians were wrong – there is enormous power by the Congress over the judicial branch and all it takes is passing a few laws in order to stop what has become the judiciary running the country. 

In proposing the Bill of Rights to the House of Representatives on June 8, 1789 James Madison made it clear that the branches of government were not to meddle in the acts and responsibilities of the others:

“The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.” (Madison to the House 1789)

In the case of Terri Schiavo, and in many matters, the judiciary has become a meddlesome busybody that requires the strongest and ultimate authority in the matters of the judiciary – the Congress – to act to finally end the scourge of decisions that have changed and now rule America.

Since Marbury v. Madison in 1803 the Supreme Court and federal courts below it have been permitted to simply declare acts of Congress and Executive Orders by the President of the United States unconstitutional.  Many look at Marbury as the beginning of judicial activism; others see it as the first time the Supreme Court used the power vested in it to “check” another branch of the federal government. 

Whatever interpretation is true one thing is certain: since 1803 the Supreme and federal courts have morphed into a Supreme Judiciary that legislates from the bench like the former Politburo in the Soviet Union and emasculated the legislative and executive branches of government so greatly that they may as well not even exist.

There is no dispute within historical or political scholarship that the intention of the Founders was to ordain in the Congress exceptional authority because it is the branch of government closest to the people. 

In Federalist Paper #78 Alexander Hamilton pointed out the intentional weakness of the Supreme Court:“…the judiciary is beyond comparison the weakest of the three departments of power; …it can never attack with success either of the other two..." and many have noted the fact that the judicial power is intentionally left to the Congress in Article III of the United States Constitution. 

Regrettably, politicians either fear the backlash of the courts or the people and they refuse to accept that the judiciary empowered itself to do whatever it wanted in Marbury and since then has legislated from the bench without a peep from those charged with deciding what it can and cannot do.

Since Marbury there have been many instances of the Supreme Court or lower federal courts simply disallowing Congressional acts or Executive Orders from being carried out simply because a federal judge or the Supreme Court didn’t like them. 

Just recently the Supreme Court of the United States bestowed rights upon enemy combatants caught overseas and confined overseas by the military (giving US Constitutional rights to those who want to kill us and our troops protections that never existed in war before); they decided that the federal constitution, which doesn’t mention the word privacy as it relates to sexuality, precludes a state from banning sodomy and decided that people who commit crimes a the tender age of 17 and qualify for the death penalty in a state do not qualify for the death penalty under the federal constitution.

So many other outrages of justice have occurred in the last two decades that in order to come up with some of their opinions the federal courts have to look overseas in order to justify them – a practice never intended by the Founders who wrote the US Constitution precisely to enjoin the United States government from acting like the governments around the world.

When it comes to citing foreign law as a way to justify their own judicial goal the Supreme Court is very selective: when it comes to teaching the Bible or saying a prayer before a football game the Court did not look to England where there is a state religion because it did not satisfy the decision they were trying desperately to find (in order to ban prayer the Court cannot look to the US Constitution or Britain where prayer and religion is a state issue), but the same court has no problem looking to foreign law to declare the death penalty for minors unconstitutional.  G-d forbid we should look to international law regarding abortion - Roe v Wade would no longer exist if the Court applied international law to that decision.

The Congress of the United States has a duty to the people to remain the most powerful branch of government.  If the people in Congress are too cowardly to employ the powers they are granted by the Constitution they must be thrown out and replaced by people who will. 

It is odd, though, that in questions of life, death and national security the Congress allows the judiciary to usurp their authority, but somehow when it comes to steroids in baseball the Congress flexes their collective muscle to chastise players about the ills of steroids and exempts the league from particular legislation.  Good thing they have time to do that huh? When it comes to the power of Congress to act on issues where it matters they have allowed the unelected and intentionally weakest branch of government to control the outcome.

That is not what Article III empowered Congress to do when it declared that all of the power of the lower federal courts was granted to the Congress – not the Supreme Court whose power was expanded by itself in a manner consistent with Stalin making a decree and everyone falling into line to adhere to it.

Since the judiciary declared that Terri Schiavo should be starved to death it is now time for Congress to examine the role it has it determining what jurisdiction the federal courts have and to remove from it the right to simply declare acts of the Congress or the Executive unconstitutional. 

They must instruct the Judiciary not to look to foreign law in making decisions about the United States and in the interest of returning the power of the United States to the people and not the courts, the Congress is obligated to take from the jurisdiction of the courts important legislative decisions that can be simply overturned by one judge for the entirety of the Republic.

The weakest branch of government has become the strongest and if the cowards in Congress will not take the power back after watching the federal courts allow a woman to starve to death by judicial fiat then it is time that the people demand that they do or throw them all out and replace them.

Courts do not run the United States of America - the people do and the only way we can is if our elected representatives act to take back control from a Supreme Court and the courts under them for important issues and leave steroids in baseball and silly hearings about credit card interest rates wait when it comes to life and death.

Steve Yuhas is a radio talk show host on KOGO in San Diego and a columnist.  He may be reached at steve@steveyuhas.com or www.steveyuhas.com