The Courts are at it again. And with Republicans planning to confirm another Obama judge as their first vote of the week, it’s time for conservatives to pay attention to the judiciary.
If you thought the last term at the Supreme Court was just an anomaly, think again. The court system is irremediably broken, and that includes the majority of lower courts as well as the majority of judges on the Supreme Court.
Over the past few weeks, we’ve been observing a pattern of cases in which the high court refuses to overturn lower court decisions that struck down state laws that were clearly constitutional, all the while refusing to reverse lower court decisions that upheld lawlessness.
For example, while the courts had no problem overturning state marriage laws, they have upheld state gun laws that are clearly unconstitutional. The Supreme Court has refused to take up any of these appeals, even though the lower courts are violating the McDonald decision. The court agreed to take Obama’s appeal to possibly overturn the lower court decision placing an injunction on the DAPA amnesty. At the same time, the court denied the appeal from Sheriff Arpaio to reverse the lower court decision upholding the DACA amnesty. Last week, the court refused to grant cert to those representing power plants languishing from Obama’s carbon rules that clearly violate congressional statutes.
The general theme is that what is in the Constitution is regarded as unconstitutional and what’s not in it is enshrined into the document by judicial action.
Yesterday’s announcements from the court were no different. On the same day the court struck down state sentencing laws regarding juveniles convicted of murder, it refused to hear an appeal from North Dakota after a lower court struck down its abortion law.
First, the sentencing decision. In Montgomery v. Louisiana, the court retroactively applied the Miller v. Alabama decision, which struck down most state laws sentencing juveniles to life in prison without parole. In 2012, Justice Kagan, writing for the majority opinion in Miller, found that the Eighth Amendment precludes states from issuing such sentences to juvenile murderers under most circumstances. Today’s decision in Montgomery, authored by Justice Kennedy, applied this decision retroactively to as many as 2,500 murderers serving life in prison without parole for murders committed as juveniles. Chief Justice Roberts joined with the five liberals, while Scalia, Thomas, and Alito dissented.
As Justice Thomas has said before, “the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights.” Yet, once again, the court rules that the Constitution as adopted is unconstitutional. Now the federal courts can engage in retroactive jail break and foray into an area of law over which they clearly have no authority. And again, I will note that this same court stands by idly as states violate the plain meaning of the Second Amendment with prohibitions on concealed and open carry.
As Scalia concluded in his dissent:
[I]n Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply ‘permitting juvenile homicide offenders to be considered for parole.’
Both Thomas and Scalia noted that the court created an entirely new constitutional right to retroactively overturn convictions that were completely constitutional at the time they were passed. Hence, with the ever-evolving standards of the legal profession’s “Constitution,” they can order judicial jailbreak at any time for any reason.
Meanwhile, as the high court overturned the Louisiana State Supreme Court and the state legislature on a retroactive creation of a newly concocted constitutional right, the court refused to hear a petition from North Dakota after a federal district court blocked the state’s six-week ban on abortion. Sadly, this is not surprising because SCOTUS refused to grant cert to Arizona after the Ninth Circuit struck down its 20-week abortion ban in 2014.
Here we are in the year 2016 and the courts have the final say on all important societal questions—from marriage and abortion to immigration and basic criminal justice laws. Many Republicans are excited by the degree of GOP control of state governments, but unless we rein in the courts and strip them of jurisdiction over political questions, they will void out the most basic laws, even those put in place at the founding of our union and the ratification of the 14th Amendment. At the same time, the courts will carelessly uphold blatantly unconstitutional laws passed by blue state governments.
If conservatives are fortunate enough to win back the White House in 2016, the most important looming question is what to do with the courts; for, if the courts are allowed to rewrite our Constitution and impel societal transformation without representation, elections will be rendered moot.
 Graham v. Florida, 560 U. S. ___ (2010) (Thomas, J., dissenting)(slip op., at 3).
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.