Vital Signs

Supreme Subjectivism and Arbitrary Abortion

A half-century ago, in Cooper v. Aaron (1958), the Supreme Court referred to the “basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” as “settled doctrine” and “a permanent and indispensable feature of our constitutional system.”  If the Founding Fathers were rolling in their graves in 1958, they must still be pretty restive.

Today, the judiciary possesses extraordinary power.  The Supreme Court can use its essentially unaccountable judgment, under the rubric of “individual rights,” to force the people to reinvent themselves against their will.  The judicial branch has reached the point where its unprecedented power is simply taken for granted.  The appellate courts have come to expect the other “co-equal” branches of government to heed their dictates on nearly all constitutional matters, including matters of individual rights about which citizens reasonably disagree.  In short, the courts expect us to obey them, however unconvinced we may be of the rightness of their decisions.

Judicial supremacy—the judicial right of preemption, entailing the finality of the judiciary’s judgment over that of all other governmental actors, including legislatures—is premised on this expectation of obedience.  For at least half a century, in the biggest intragovernmental...

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