Who Decides?

The ongoing controversy over the fate of Terri Schiavo has highlighted a prominent feature of cultural life in America: the central role of the judiciary in contentious matters. Terri’s husband says she would want the tube which keeps her alive removed; her parents say she would not.

Who decides?

In this particular case, a single Florida circuit court judge has decided that Terri would have indeed wanted to die, and so she will die. All the arguing and wrangling and evidence and medical testimony have been channeled through the single narrow gateway of a particular judge in these particular circumstances. Regardless of one’s position in the debate, it is unsettling that a single judicial official can hold in his hands the fate of a disabled and voiceless young woman who has committed no crime.

This is not the only instance in which matters of great import have been decided by a handful of judges or justices. When Congress passed the McCain-Feingold campaign finance reform bill, cynical Republican legislators voted for it, and President Bush signed it, with the understanding that parts of it were unconstitutional and the expectation that the Supreme Court would overturn it.

Who decided?

The Supreme Court decided, or, in this particular case, Justice Sandra Day O’Connor decided, since she was the “swing justice” casting the deciding vote. Congress and the President ceded decision-making authority to a single person, who arguably acted against the provisions of the First Amendment. Whether by ignorance, indifference, or calculation, the Executive and Legislative members of our government failed to carry out their oaths to uphold faithfully the provisions of the United States Constitution.

Then there is the ongoing issue of gay marriage. State by state gay rights activists are pushing to have gay marriage mandated by the courts, and laws against it overturned. People in favor of gay marriage say that it is only fair; those opposed say that it goes against all tradition and threatens the institution of marriage. Religious people cite scripture or the words of Christ to support one side or the other of the argument.

Who decides?

Four out of seven justices of the Massachusetts Supreme Court decided that the Commonwealth, in order to give gay couples equal rights, must allow them to marry. California seems to be following suit.

Regardless of which side one is on in this issue, how is it possible to read in the Constitution a right for two people of the same sex to wed? The Constitution makes no mention of it. Until about 1970 the idea would have been laughable, and never seriously considered. If times have changed, the people of the country, acting through their elected representatives, could choose to pass new laws allowing gay marriage. Yet it is a handful of justices, acting against the popular will, who decide.

The Constitution does nor mention automobiles or drivers’ licenses; yet the Commonwealth of Virginia, through its legislature, has decided to require that anyone who wishes to drive a car have a valid driver’s license. I think that is unfair and discriminatory against me: can a judge decide that I do in fact have the right to drive a car without a license, regardless of the law?

Who decides?

On issue after issue — the execution of minors, affirmative action, school busing, even the raising of taxes to achieve certain goals — the same process has evolved: a judge or panel of judges makes the decision. Our elected representatives are perhaps afraid of the adverse publicity (since the mainstream media support the same agenda as the judiciary) and do nothing to halt the process. A few well-timed impeachments might do wonders to focus the judicial mind, but such is unlikely to occur.

As ShrinkWrapped says:

     We also need something greater than ourselves to anchor our morality; otherwise morality is just opinion. In our secular world, we have had the tremendous advantage of some rather brilliant men who put to paper, over 200 years ago, a set of principles which have served to protect the kinds of personal freedoms that have never been seen before for so many for so long. If we replace our reliance on the words they left us and instead rely on what we want the words to mean, we are endangering our freedoms, almost always with the best of intentions. When Justice Kennedy writes that his recent decision on executing minors (a decision I agree with, by the way) is in part based on the opinions of the international (ie EU) elite, I see us moving into dangerous territory. We need Supreme Court Justices who are humble men, who do not see things in the words that are not there. If our freedoms depend on the opinions of nine fallible individuals, I would prefer to rely on individuals who recognize how little we really know, even about ourselves, and how little we really can know. We should be extraordinarily careful of altering something which has worked well, if not perfectly, for over 200 years.

The rule of law depends on the existence of a permanent law whose meaning is clear to everyone. When the law means whatever Justice Blowhard says it means, then, in the immortal words of Mr. Bumble, “The Law is a ass.”

As we approach Easter, it would be worthwhile to remember Pontius Pilate, who washed his hands and declined to decide Christ’s fate. Even so, somehow the nails were driven in, the gibbet was raised, and the Son of Man was slain.

Who decides?