How dare a thinker like Sowell offer sense and sensibility to the Constitutional structure of this country? I’m being sarcastic of course. Sowell puts it this way in reference to those judges who feel compelled to alter the laws of this land in order to fit their own perceptions or impressions.
If the public doesn’t like the rules, or the consequences to which the rules lead, then the public can change the rules via the ballot box. But that is very different from judges changing the rules by verbal sleight of hand, or by talking about “weighing of the constitutional right to bear arms” against other considerations, as Justice Breyer puts it. That’s not his job. Not if “we the people” are to govern ourselves, as the Constitution says.
Supreme Court Justice Oliver Wendell Holmes once said his job was, “to see that the game is played according to the rules whether I like them or not.” That outlook is a far cry from what we all too often see from judges today. In defense of those who won’t or can’t see the actual role judges are to play in interpreting the law, it can be a difficult thing to do when sometimes we are outraged by events and demand judges make laws to prevent this from happening. Judges don’t make laws, the Legislative Branch does and that’s where we as voters have a say, or should have a say.
But when we appoint Justices to sit on the Supreme Court, it is imperative to find those highly qualified individuals who can and will maintain the attitude as repeated by Justice Holmes; whether they like it or not.
President Obama’s first nomination to the Supreme Court, Sonia Sotomayor, said the Bench is were policy is made. This is of course contradictory to the position of Justice Holmes but reflects the kind of Justice Obama seeks – not a person to see that the game is played by the rules but to change the rules in the middle of the game. This of course leads to the destruction of a nation.
And as our Congress debates the appointment of Elena Kagan, so too should they consider this very point as made by Thomas Sowell.
Tom Remington
