A fabrication has been fed to us for years by our schools, politicians, mass media and even pop culture… that courts make laws. The reality… they don’t, and this is a dirty little secret in the political world.
About 30 years ago, while doing some lobbying work in New Hampshire regarding false accusations of child abuse, I noticed Planned Parenthood lobbyists working hard to overturn that state’s prolife laws still on the books. Why were they doing this? After all, wasn’t Roe the established “law of the land?” Well, it wasn’t, and Planned Parenthood knew this.
That also means most politicians knew this as well. For years, these politicians fed us the line that went something like this- “I can’t do anything about abortion, because the courts made the law.” Many ran as prolife candidates, but never submitted a true prolife bill to the legislative floor. Nor did they tell us the truth… that only they, the legislature, make laws.
Of course, we can read this fact in every constitution in our nation. But who reads those archaic documents today? The Left certainly doesn’t teach this in our schools. Even many so-called “conservative” Christian schools don’t teach this fact.
Much of the thinking that courts make law is connected to the Marbury v. Madison case of 1803, where it is falsely asserted that this case established “judicial supremacy.” Pure nonsense. The judiciary is not supreme, as it has no means of enforcement. Indeed, it’s the weakest branch of our government. Presidents like Andrew Jackson and Abraham Lincoln understood this all too well. So do many local officials.
But at times, the dirty little secret does get exposed. When Roe was still “on the books,” the leftists demanded that we shut up and obey. After all… “it’s the law of the land.” But as soon as it was overturned, what did we hear? “The Supreme Court is illegitimate!” So much for courts making law.
So why do politicians support the idea that courts make laws? So, they can avoid accountability. A politician can pull the wool over our eyes, claiming he’s prolife while blaming unelected courts for abortion. Such deflection from accountability spans a host of issues at all levels of the American political system.
But when it comes to a pork barrel project wanted by politicians, they can act with astonishing alacrity. This is what happened to the Tellico Dam on the Tennessee River. Initially, the project was stopped by the Supreme Court in the 1978 case, Tennessee Valley v. Hill, ostensibly to save the snail darter fish. Undeterred, pork barrel politicians in Congress removed the project from the Court’s jurisdiction by placing a “rider” on a public works bill.[1] This was signed into law by “environmentalist” Jimmy Carter, though he initially opposed the dam.
So-called “prolife” Congressmen could have submitted a similar bill to remove the abortion issue from the jurisdiction of the courts, thus reenergizing all the state-level prolife laws on the books. To my knowledge, such a bill has never been submitted, and so we are still saddled with the abortion monster.
So remember these things when prolife groups bash Donald Trump for not being prolife enough for their taste. Where were they all these years while Roe was called “the law of the land?”
Why, they were raking in our cash donations of course.
Russ Rodgers has several books published on Amazon.
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[1] As per Article III, Sec. 2, para 2 of the U.S. Constitution.
Marbury v. Madison established judicial review, not judicial supremacy. Although today’s court seem to try to establish judicial supremacy. Note, there is nothing in the Constitution that provides for judicial review. Chief Justice Marshall (most like a distant relative of mine, but can’t tell for sure since so many records burned in Richmond during the war) made it up out of whole cloth. We’ve continued the process out of custom rather than law. Be interesting to see someone challenge it in Congress.
Thank you much for your comment. You are correct in saying that Marbury never established judicial supremacy. I noted that it is often asserted today, and Marbury is used as the “example.” I’ve seen this in countless writings and journals… and even asserted on legislative floors…, where the claim of “judicial review” established such supremacy. For many decades, Leftists have claimed “judicial supremacy” for the Supreme Court, especially on the issue of abortion. It was even asserted that only the Supreme Court could declare a law unconstitutional, and that the other branches of government had no role in doing the same.
Courts have had a concept of judicial review for centuries (though not using the term), even before the founding of the United States. However, it was not the way our leftists jurists try to view it today. Sir Edward Coke’s “Rooke’s Case” (Hilary Term, 40 Eliz. I, 1598) is often used to claim that Coke held to our modern version of judicial review. He did not. Rather, he ruled that a Crown statute was clear and that local rules were violating the statute. Therefore, he “overturned” the local rules… that is, they had to obey the Crown statute.
Such “review” has been practiced for centuries, and is in large part based on case law. The entire idea is that courts apply the law to a given case. Even if they say that a law does not apply in that specific case, it did not invalidate the law in general. A court could make such a statement… but that didn’t mean everyone now had to obey such a declaration.
The courts may not legislate, but they are getting very close to defacto making law with their rulings. Some justices have even come out said the Constitution is a relic of the past and should not constrain or shape their opinions and rulings. Marshall opened Pandora’s box.