It’s the slippery slope question that proponents of judicial supremacism can never answer. If an unelected judge stands above the other branches of government over societal or philosophical questions affecting the whole of the people – and can redefine even God’s laws, basic biology, and common sense – then there is quite literally nothing the judicial branch of government cannot do. So, is there any limit whatsoever to judicial power?
Meet “Sandra,” a 33-year-old orangutan from Argentina that is in the news this week because it was transferred to a Florida facility. But there is some unique history behind this orangutan, to say the least. In 2014, animal rights groups in Argentina filed a habeas corpus petition on behalf of the animal to have her freed from the Buenos Aires zoo whose accommodations violated human rights. Judge Elena Liberatori ordered her released in 2015, suggesting that she “spend the rest of her life in a more dignified situation.”
“With that ruling I wanted to tell society something new, that animals are sentient beings and that the first right they have is our obligation to respect them,” Liberatori told the Associated Press.
Now Sandra has found a home at the Center for Great Apes in Wauchula, Florida, which is billed as a “sanctuary” for apes where they can live free in a sprawling 100-acre reserve that fits their natural habitat.
With Sandra in the news, it got me thinking, what is to stop a judge from doing that in America? If U.S. judges are accorded authority to contort human biology, natural law, our history, our founding, case law, and ancient principles of sovereignty to make denizens of aliens, victims of criminals, and men of women, then why can’t they offer human rights to animals?
If a court can rule that 7.8 billion people have the right to sue to enter our country and then demand mental health treatment for their kids and all sorts of free medical care, then what is to stop them from creating mandatory asylum for animals in zoos around the world? The Center for Great Apes is a voluntary sanctuary, but what’s to stop the courts from mandating it on society? Then, what’s to stop them from mandating sex change operations for the orangutans, using Medicaid?
We’ve essentially reached that point in this country. This has been a crazy week in the courts. A federal judge demanded that the Trump administration pay for mental health services for illegal alien children whose parents were prosecuted for breaking the law like any American criminal. Another judge mandated the right to enter the country and access health care on the taxpayer’s dime. And yet another judge said the states have a right to federal health care block grant funds and that we must allow states to force doctors into performing abortions and castration procedures.
There is not a single social, political, or philosophical question – whether it violates natural law or not – that courts have not taken for themselves.
The question Republican politicians and administration officials are not asking is: what is the limit of their power? Simply responding to these power grabs by suggesting we just appeal to a higher court is problematic for three reasons:
The tragic twist is that the first fight over judicial supremacism vs. decompartmentalism among the three branches was over the courts making beasts of humans. In Dred Scott, Chief Justice Roger Taney ruled that black people were property, just like animals.
Stephen Douglas expressed the view that the courts can decide such questions and that those decisions are binding on other branches to accept that view. Lincoln, on the other hand, believed that every branch must interpret the Constitution according to its right construction. Indeed, this is why, as president, he gave passports and citizen documents (which are executive powers) to black people even as the courts continued to view them as chattel. He wound up making Roger Taney eat crow and be reminded of his impotence and that of his branch of government when he became president. Taney was compelled to administer the presidential oath of office to Abraham Lincoln on March 4, 1861, and was forced to listen to Lincoln’s inaugural address, in which he rejected the notion that “the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions.”
Back then, slavery was pretty much the only issue on which the question of judicial supremacism mattered. The courts in general were in sync with natural law, and everyone understood that the Constitution didn’t create a right to immigrate or to taxpayer-funded castration while infringing upon the inalienable rights of self-defense and conscience. Today, there is no fixed constitutional belief in anything. As such, if we genuflect to judicial supremacism, we are consigning ourselves to a judicial model of North Korea. And whereas the Dred Scott legacy of judicial supremacism began with according unelected judges the power to make animals of humans, those powers will now capture everything under the sun, including the ability to make humans out of animals.
As Lincoln warned during the fifth debate with Stephen Douglas in Galesburg, Illinois, October 7, 1858, the acceptance of Dred Scott “commits him to the next decision, whenever it comes, as being as obligatory as this one, since he does not investigate it, and won’t inquire whether this opinion is right or wrong.” Lincoln portentously said that Douglas “teaches men this doctrine, and in so doing prepares the public mind to take the next decision when it comes, without any inquiry.
As we see today, there is no limit to “the next decision,” nor is there any floor to the depravity of judicial omnipotence. Their wish is our command.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.