Judicial activism and the rule of law
The following passage from a recent article about the reach of the Fair Housing Act is a perfect summary of how our "judicial" system has been corrupted, turning the federal judiciary (and especially the Supreme Court) into a super-legislature instead of acting in the role intended by the men who wrote the Constitution.
Justice Stephen G. Breyer summed up the liberal argument.
"This has been the law of the United States uniformly throughout the United States for 35 years, it is important, and all the horribles that are painted don't seem to have happened, or at least we have survived them," he said. "So why should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people, [and] has not produced disaster?"
Source: The Washington Post
The fact that any of the justices is even considering public policy instead of the rule of law should be frightening to everyone on both sides of this debate. It is not, has never been and should never be the role of the courts to determine public policy. That is the role of the legislative branch and, to a lesser extent, the executive branch. Public policy should not even be considered by judges when deciding whether the implementation of a law is legal and/or constitutional.
To be fair, the court is also considering the legal arguments both sides are presenting, both regarding the original intent of Congress when it passed the law and when it renewed the law. Hopefully, those arguments will be the primary basis on which this decision is made when the court rules on "disparate impact" as a standard.
But the fact that public policy is even influencing this debate (and many others before it) is a dangerous perversion of our constitutional republic. We are moving more and more to being a judicial oligarchy, with nine people in black robes ruling the nation with little to no true oversight. If we value the Constitution, we need to put a stop to this and put the judicial branch back into its proper role.
Supreme Court justices are not legislators and they should not pretend to be. If a law violates the clear text of the Constitution or laws that supersede it, that law should be overthrown. If the enforcement of a law does not match the text of the law, then that enforcement action should be ruled illegal. The personal public policy preferences of a judge should never enter into the equation. If justices want to shape public policy instead of applying the law and the Constitution, they should resign from their seats and run for office.