The Constitutionalization of the Supreme Court: A Proposal

The Supreme Court, unchallenged, has removed God from the public square and redefined marriage radically changing American social and religious values by highly questionable Constitutional interpretations. Because of the monumental impact of such decisions, we are entitled, nay, obligated to ask what’s going on with the nine justices. For example, let’s take Justice Kennedy, a Reagan choice and alleged conservative and Catholic. He has joined the liberal wing becoming the swing vote on abolishing the government’s definition of marriage as a heterosexual institution, supported the right to homosexual marriage and the right for the government to force low cost housing in communities such as Westfield, even without evidence of discrimination.

As a physician who has travelled the globe dealing and dining with hundreds of various leader types including those of government, I’ve observed that the quest for recognition, through the exercise of power, oftentimes is an irresistible force in decision- making. I call it the Mount Olympus Syndrome. The predominately liberal media, particularly the New York Times, which Justices Scalia and Thomas, interestingly enough, do not read, sense Kennedy’s whimsical inclinations showering him with adulatory recognition while, paradoxically, ignoring liberal Justice Breyer, taking his automaticity for granted. It does not take a Freud, Jung and especially an Adler to conclude that he bathes in and is influenced by such adulation. We are all human. There’s little doubt that he, as well as his colleagues, are aware that history might conclude that the current court is the Kennedy and not the Roberts’s Court. Perhaps this played a role when Justice Roberts surprisingly joined the court’s liberal wing by ruling on the constitutionality of the Affordable Care Act, which Kennedy originally ruled against. But then in a subsequent ruling, Kennedy joined Roberts and the liberals in supporting the Act diminishing Roberts’s unique judicial stature.

To be sure, the interpretation of the Constitution has its gray zones. In his later years, James Madison, the father of Constitution, noted that its judicial interpretation was already “unknown to its founders.” Also, the perception of the meaning of words changes with time. The highly insightful Archbishop Chaput of Philadelphia observed, “The biggest problem we face as a culture isn’t gay marriage or global warming. It’s not abortion funding or the Federal debt. The deeper problem, the one that’s crippling us, is that we use words like ‘justice,’ ‘rights,’ ‘freedom,’ and ‘dignity’ without any common shared meaning to their contents.” Indeed, Justice Kennedy has written that we’re still learning what liberty is and also inferred that the exercise of religious freedom needs to be reexamined, but that the court, eerily reminiscent of Robespierre, will make such judgments.

It’s a self-evident threat to America’s stability that the Supreme Court can, unchecked and under cover of an imagined Constitution, assume the role of the supreme arbiter of morality and religion creating national chaos. Hate now seems to be everywhere. Our elected officials, unlike the Supreme Court, present their positions before we elect them. If we disagree when elected, we can vote them out. Not so with the justices. They are permanent fixtures for life. Though there are constitutional remedies, such as impeachment or enlarging its members, they are impractical to execute.

The court is composed of nine Catholic and Jewish justices, lacking a single Protestant member, and are either Harvard or Yale graduates- forget about Rutgers! As a policy, the justices issue their written opinions after their irrevocable decisions are made. The Constitutionalization of the Supreme Court proposal would change that. On cultural disrupting and other critical decisions, particularly 5-4 ones lacking unanimity, their written opinions would be published for a fixed period of time before such decisions become law to be reviewed and critiqued by interested pro and con parties regarding the constitutional basis of their opinions. After having received and digested such feedback, they would reconvene to reconsider their decisions. This much needed national educational effort would help clear the air on the interpretation of the Constitution both for the justices and the public. It would also create a path for the justices to descend from Mount Olympus back down to planet earth.

Stephen DeFelice, M.D. Westfield

Originally published in The Westfield Leader and The Scotch Plains – Fanwood TIMES on Thursday, July 23, 2015.

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