Tuesday, July 21, 2015

The Rout (not Rule) of Law

I am an attorney, licensed to practice law in California (and also to appear in a number of federal courts, including the United States Supreme Court). As such, I take an oath to uphold the Constitution, and I take the oath seriously.

The Justices of the Supreme Court take two oaths upon entering their lifetime offices, which you may read here. Suffice it to say that each Justice undertakes "to support and defend" our Constitution, and to "faithfully and impartially" perform the duties of their office. After the 5-4 "decision" last month in Obergefell v. Hodges, there is a legitimate question as to whether Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan any longer respect their oaths.

Are those strong words? They are intended to be. Consider just this fact:

Well before the Obergefell case ever came to the Supreme Court, both Justice Ruth Bader Ginsburg and Justice Elena Kagan officiated at same-sex marriage ceremonies. Yet neither of them saw fit to recuse themselves from deciding whether same-sex marriages must be imposed on all States under the Fourteenth Amendment. They simply ignored the request to do so, because it was filed not by a party to the case, but by amici curiae ("friends of the court", who may offer advice, but are not actual parties).

How does the Justices' insistence on participating in the decision reflect any impartiality in the matter whatsoever? Their minds were already closed on the subject.

Imagine the left's outrage if two lawyer-obstetricians had been on the Court in 1973 when Roe v. Wade was decided, and their votes had changed the outcome to one that refused to make an abortion a federal constitutional right. But when two liberal Justices see no reason to recuse themselves for having already performed same-sex marriages, nobody (not even the parties!) makes a peep.

As for Justice Kennedy, he broke his oath by legislating from the bench -- i.e., climbing out of his role as judge and deciding by fiat to impose what he thought was the constitutionally required definition of "marriage" upon America. The other four Justices, including Justices Breyer and Sotomayor, signed onto his legislative usurpation without a single qualm, so they are just as complicit in the violation of their oaths.

Note for the five Justices in the "majority": the word "marriage" nowhere appears in the United States Constitution. So where, pray tell us, do you find the source of your power to define the word for the entire country?

Answer: Nowhere. Justice Kennedy and his four cohorts simply asserted that authority.

Once five Supreme Court Justices decide to abjure their oaths, and make up the law for the occasion, what is left of our much-touted "rule of law"? It has become a rout -- and nothing deserving of our respect, to say naught of allegiance.

We have a lawless President, who changes or suspends the laws at will, and ignores whatever he doesn't like.

We have a lawless Congress, who has to vote to pass laws before they can know what they contain, and who routinely (and fraudulently) exempts itself from the laws to which it subjects the rest of us.

And now we have the ultimate oxymoron -- a lawless Supreme Court.

When all three branches of the national government show such contempt for the rule of law, one might expect anarchy to result, but instead (because of the powers already vested in them) we get Animal Farm. The resulting elitism of those within the Beltway turns our country's founding principle on its head.

Once the common folk begin to grasp the fact that there is no leadership, but only lawlessness, and competition to "get mine first", the country may have to resort to martial law to preserve order. Such an extreme measure in response to an external threat (such as invasion) would be understandable. But in response to internal unrest engendered by elitist lawlessness, it will be a tragedy for the republic.

People need to use Facebook, Twitter and all the other social media not just for chatter, but to begin holding their elected leaders (and unelected judges) accountable. Without accountability, there can be no responsibility.

And where there is no responsibility, there can be no republic, but only a descent into tyranny.

Maybe Robinson Jeffers was prescient:

Shine, Perishing Republic

While this America settles in the mould of its vulgarity, heavily thickening to empire

And protest, only a bubble in the molten mass, pops and sighs out, and the mass hardens,

I sadly smiling remember that the flower fades to make fruit, the fruit rots to make earth.

Out of the mother; and through the spring exultances, ripeness and decadence; and home to the mother.

You making haste, haste on decay: not blameworthy; life is good, be it stubbornly long or suddenly

A mortal splendor: meteors are not needed less than mountains: shine, perishing republic.

But for my children, I would have them keep their distance from the thickening center; corruption

Never has been compulsory, when the cities lie at the monster's feet there are left the mountains.

And boys, be in nothing so moderate as in love of man, a clever servant, insufferable master.

There is the trap that catches noblest spirits, that caught – they say – God, when he walked on earth.


  1. A military officer also swears to "...support and defend the Constitution of the United States..." When I was a serving officer, it seemed that everybody was more or less in agreement on what that was. Today, I would be hard pressed to be able to explain it since words often now mean the opposite of what they seem to say. Having a situation where you worry that your ultimate superiors are part of the "...enemies, foreign and domestic..." is NOT a healthy situation for a Republic, and especially for those sworn to defend it.

    1. 1984, anyone. Tregonsee is also prescient in his way, and a better man than those who are trying to disassemble the Republic one plank of the barn at a time. Bother ye not the horses and cows, they have long been gone and slaughtered to feed the unattended masses.
      We find ourselves in accord, concurrence AND agreement with Tregonsee and our Rabbi who affords us this wondrous synagogue of true refuge.

      El Gringo Viejo

  2. I have often wished we could lock the Nine into their chambers with nothing but The Constitution in their legal library.

  3. I am so sorry to have overlooked the comments of my two favourites among favourites. Please include my highest marks and comfort taken by their wise and salient comments.

    El Gringo Viejo

  4. Militaris Artifex writes in to comment (since he is temporarily unable to log in as usual):

    I am, sadly, reminded of the name given to the Warren Court by one commentator, whose identity I no longer recall. The moniker was "Agile Earl and his Adaptable Eight."

  5. For some reason, the name Dan Smoot, who published a weekly broadside back in the 1950s through the early 1970s....associated with the Birchers and Mercury Magazine, and HLHunt people. There was also some wire crossing between him and "The World To-morrow, with Garner Ted Armstrong" radio programme and the HLHunt people.

    Talk about knocking rust off the brain.
    El Gringo Viejo