Courtesy of wikipedia.com
A Chinese proverb about the butterfly effect teaches that small changes can have great consequences. Who would have thought that a farmer drilling a well to tap groundwater for his crops would cause the earth to wobble on its axis? Yet climate scientists report that farmers, towns, and cities that sip water from the aquifer the way a teenager downs a Coke are responsible for the wobble.
After the Big Bang, another small effect was the birth of electrons. The orbits of many spun to the right but a few spun to the left, enough to prevent matter and ani-matter from canceling each other out. The left-handed flotsam and jetsom that remained became the stuff of the universe.
Similarly, through a series of small encroachments, the United States Supreme Court has usurped powers beyond those specifically granted in the Constitution. Originally, the High Court rode the circuit. Judges traveled within districts to dispense law and order among the population. In 1803, in the case of Maybury vs. Madison, a question about Senate judicial appointments arose. The Court paused. Did it have the authority to rule on legislative matters? The jurists decided they did. And, as they say, the rest is history.
Since deciding they had jurisdiction over Executive and Legislative matters, the High Court and its federal branches have inserted themselves into matters of government in ways that might mystify ordinary citizens. Recently, a District Court judge ruled that the drug mifepristone was unsafe for human consumption though for years it had been approved by the FDA and used for several medical conditions, including to induce abortion. A Right to Life advocate, the jurist chose to ignore the record and his lack of medical training so that he could elevate his opinion above the facts. Some might call it an abuse of power.
In the view of many, a majority of the current Court has no qualms about flying in the face of public opinion to defend its conservative opinions. Were these rulings subject to a vote, it’s doubtful that the common man would support an agency determined to maintain social inequality. Even so, last year the High Court made strides to erode affirmative action, and LGBTQ rights while it pitted civil liberties against free speech. For example, a recent decision granted businesses permission to refuse service to minority segments of the population. Stunned, a left-leaning jurist, Sonia Sotomayor, could only stutter, That is wrong. Profoundly wrong.
The Court’s upcoming fall season allows them a further opportunity to eat away at established protections. Acheson Hotels v. Laufer raises the question of standing for citizens who file complaints in civil rights and fair housing issues. CPFB v. Consumer Financial Services Association challenges the latter’s authority to protect consumers from the abuses of payday lenders. Kirtz vs U.S. Dept of Agriculture challenges the government’s right to sovereign immunity. Loper Bright vs. Raimundo, Secretary of Commerce challenges the “Chevron Defense. That defense permits government agencies to interpret a law if it is ambiguous. (“Four Fall Supreme Court Cases,” by Allison Zieve, Public Citizen News, Sept/Oct, pg. 7.)
The judiciary’s aloofness and its insistence that Congress has no right to impose restrictions upon it, not even a code of ethics, doesn’t serve them well. It also flies in the face of reality. The Constitution gives the Legislature control over the federal court budget as well as an obligation to appoint its judges. Pretending the separation of its power is absolute smacks of hubris. When judges begin to think themselves above and beyond any checks and balances, they’re too far gone. (“Reign Supreme,” by Cristian Farias, Vanity Fair, November 2023, pg. 33.)
The High Court would do well to listen to the murmurings of the populace, too. Just as a butterfly’s wing may affect a drought in China, so too, an ultra-conservative Court out of touch with the people erodes respect for the institution and fosters social unrest. The Supreme Court would do well to consider the laws of physics as well as those of jurisprudence. After the Big Bang, the electrons that spun left rather than right had the power to create the universe.
