It has scuttled the separation of powers while taking over the prerogatives of Congress and the executive branch. We have an oligarchy unaccountable to the rule of law while answering instead to confused ideologies, the mood of the moment, political snarling, assumed moral superiority and whims dispensing with credible analysis.
As exemplified in two recent decisions, it is scary, truly scary, something that has shown its ugly face off and on for decades and yet seemed to have been cured with two excellent constitutionalists appointed as justices under President Donald Trump.
The threat has nevertheless risen again in two decisions, one contending the Civil Rights Act of 1964 said what it did not say and another saying that President Barack Obama's order called the Deferred Action for Childhood Arrivals, though illegal, should be granted legal standing.
Concerning the Civil Rights Act, it forbade employment discrimination on the basis of race, color, national origin, religion and sex And the court decision said that, since it applies to sex, it also applies to sexual orientation and gender identity.
As a Wall Street Journal editorial wrote, Neil Gorsuch, who wrote the decision, had himself previously written that words in laws should be taken to mean what the ordinary, common meaning was at the time the law was written. And, when the act was written, the word "sex" referred to biological sex, to men and women as determined by their physicality.
A New York Times editorial calls this ruling "an emphatic win for civil rights, equal justice and common sense," which is to say, it has an uncommon notion of what constitutes common sense. Yes, we should all want respect under the law for transgender and gay Americans so often maligned and treated unfairly, but that's the job of Congress and a president's pen. It is not the job of the Supreme Court unless you want separation of powers thrown away so that justices and editorial writers can think of themselves as moral heroes.
Yes, Congress should come to the rescue of gay and transgender people as well as to the rescue of children brought here illegally by their immigrant parents. But the answer to this was not for the court to also abandon its responsibilities on the issue of people brought here illegally as children. Interestingly, it agreed that DACA was against the law but said the Trump executive order doing away with it was not well-enough written. That was beside the point. Illegal is illegal. The court now stands for illegality by way of an oligarchy yawning at what the law explicitly says?
Just as he joined Gorsuch and the court's four illiberal liberals on the civil rights decision, Justice John Roberts — supposedly himself a constitutionalist — joined the four illiberal liberals on the DACA decision. It was thought that, thanks to Trump, we had five constitutionalists vs. four people who think the Constitution is a worn-out old document that should be amended by them instead of by a process intentionally arduous for protection of the public, still assuming they have some rights.
But no, and this is not just an interpretation but the assumption of certain vaporous ideals prone to their own liking. It is the court coalescing governmental power ultimately unto itself.
There is something for the court to fear, namely that the Democrats could win the Senate, House and presidency this year and push ahead with the plans of some to pack the court as a far more flagrant violation of principles.
Or maybe, with constitutionalists converting to puzzling ways of thinking, the Democrats will leave it alone, not so unhappy with what it has and simply replacing retirees with ideological puppets further degrading what we are.