OPINION: Supreme Court activism should give citizens pause

I have had numerous people ask me what I thought of the recent Supreme Court rulings, two in particular.

To be clear, I have the utmost respect for the nine justices on the Supreme Court. They do a tough job well. Furthermore, I can see both sides of the issues from a policy standpoint. In the first, God calls us to love everyone, and he meant that. God also set up marriage as between a man and a woman.

In the second case, in a country as affluent as the United States, everyone should have basic health care. On the other hand, it is tough to swallow when government from afar (the Washington beltway) forces it on us, without our input.

So putting aside policy arguments for or against, I was disappointed in the Supreme Court, specifically with how the justices got to their decisions on both the Affordable Care Act and same-sex marriage. Regardless of how one feels about the issues, the rulings exhibited judicial activism, which is contrary to what judges are selected/elected to do. As a former legislator, I believe strongly the state Legislature or Congress should make the law, and judges should follow the law.

The first case is a states’ right issue. You see, the 10th Amendment to the Constitution clearly says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is the basis of federalism. In other words, powers not expressly given to the federal government are “reserved” for the states.

Thus, important issues, such as same-sex marriage, should be decided state by state, by each state’s legislature, or by referendum, but in either case by “the people.” This is the foundation of our system of government.

Interesting enough, this system was working. Over the last decade or two, there has been a debate, state by state, on same sex marriage. At the time of the ruling, 36 states allowed same-sex marriage, and 14 did not. Clearly, states were addressing the issue. I am very disappointed five unelected justices, all from the East Coast and Ivy League schools, decided they should decide (“legislate”) this issue for 320 million Americans.

 Justice Scalia correctly called the ruling a “threat to American democracy,” stating “This practice of constitutional revision by an unelected committee of nine… robs the People of the… freedom to govern themselves.”

Justice Alito wrote: “Today’s ruling usurps the constitutional right of the people to decide whether to keep or alter the traditional understandings of marriage… All Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.” I could not agree more.

The second case is noteworthy also, but for a different reason. In King v. Burwell, the Supreme Court upheld federally mandated insurance subsidies in 34 states. The problem is the court actually had to add language to the statute to make the ruling — and I was taught only Congress could amend statutes.

Again, as Justice Scalia explained: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or Federal Government.’ This is of course absurd… The somersaults of statutory interpretation they have performed… will be cited by litigants endlessly, to the confusion of honest jurisprudence.”

To be fair, conservative justices have also contorted the law to suit their purposes — the most notable example being the infamous Dred Scott decision, which upheld slavery in 1857, leading to the Civil War.

So, at the end of the day, regardless of where you come out on these important issues, you should be concerned. Our Supreme Court seems to be willing, in split decisions no less, to conform the law to their liking. Whether you consider yourself a liberal, conservative or moderate, this activism could cut for how you believe one day, and against how you believe the next. These type of important policy decisions are best left to our elected legislative branch, whether state legislatures or Congress, where “the people” can debate and decide for themselves.

Fagg, of Billings, has been a state District Court judge for over 20 years, and has handled over 25,000 cases. He is the past president of the Montana Judges Association