Morris: The court and balance


Leo Morris

Make it so.

Thus commands Jean-Luc Picard, captain of the starship Enterprise, whenever an emergency arises for which there are only weak options in response. He selects the one that, in his view, offers the best hope of success and orders his crew to get it done.

No debate is invited, no questions to be asked. Don’t bother him with the details. Just, “Make it so.” More often than not, this being cinematic fiction, it ends well and they all speed off to the next crisis at warp speed.

That’s what we want in our all-too-real lives these days, isn’t it, a commanding leader to study the options for us, make up our minds and give us our orders?

Those who have studied past democratic efforts, especially those who have read Plato’s “Republic,” might say we yearn to be ruled by a wise, kind, all-powerful philosopher king. But philosopher kings being in short supply, and the study of history a suspect endeavor, the most we can hope for is a wise, kind, all-powerful captain who will steer us to a safe landing.

But as loyal Star Trek fans know, occasionally another captain will show up, drunk on authority and/or as crazy as an outhouse rat, whose “make it so” will lead to unmitigated disaster while the hapless crew members blindly go about their assigned tasks. Only if the crew comes to its senses and rebels can catastrophe be avoided.

That’s the thing about letting power accumulate in one place – you might get someone wise and kind, and you might get a raving lunatic.

Why don’t more people understand that about the Supreme Court?

For better or worse, and for a lot of reasons, the court has become the one unfettered member of our system of checks and balances – its edicts to “make it so” subject to no debate, questions not appreciated.

And adherents of the political left for years – decades, really – not only liked such focused power but encouraged it, because at the court they got all the things they wanted but could not get through the legislative process. But now, when conservatives have finally succeeded in getting a court majority, they view the court as a profound danger to our whole way of life.

Listen to Marc Ash, former executive editor of Truthout, who demands that Americans “must join hands and challenge the legitimacy if this rogue court. The corruption of the Supreme Court ultimately means the downfall of the rule of law in America.”

To which the rational response is, “Hey, pal, you asked for it, you got it. You created a monster, and it turned on you.”

To be fair, conservatives were just as distrustful of the court when they weren’t getting what they sought and the other side’s rogues were bringing about the ruin of the rule of law. People want what they want when they want it, never mind the sovereignty they abdicate in the process and where that power settles and accumulates.

And that is such a dangerous frame of mind for a supposedly free, self-governing people.

Alexander Hamilton in Federalist No. 9 talked of the “sensations of horror and disgust” at the distractions with which the early republics of Greece and Italy were continually agitated “and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of anarchy and tyranny.”

It was chiefly because those republics did not benefit from advancements in the science of politics: “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election … They are the means, and powerful means, by which the excellence of republican government may be retained and its imperfections lessened or avoided.”

Furthermore, state governments would be “constituent parts of the national sovereignty,” allowed to retain “certain exclusive and very important portions of sovereign power.” Not only would power be fragmented within the federal governments but further diffused by sharing it with states. Nobody could get what they wanted when they wanted it just because they wanted it.

If that Hamilton isn’t convincing enough, try another one, Democratic U.S. Rep. Lee Hamilton of Indiana, who went off on Col. Oliver North back during the Iran-Contra scandal, for not having faith in America’s democratic traditions.

He did not question North’s patriotism in participating in the clandestine arms-for-hostages deal but noted that our government is not devoted to a particular objective “but is a form of government which specifies means and methods of achieving objectives.”

A few, he said, “do not know what is better for Americans than Americans know themselves.”

And what exactly has the Supreme Court done in the waning days of this controversial term? Whether you admired or abhorred its specific decisions, you should acknowledge that it has done the best we can hope for from an institution with unchecked power: Diffuse power by spreading it around.

In the abortion case, it gave up its own power, sending decision-making back to the states and their voters. In the EPA case, it took power away from a body of unelected bureaucrats and told Congress to do its job. In the gun case, it said everyone in authority had to operate within limits set by the Constitution.

You are more than the crew on this spaceship of state. You are ultimately in charge, and whether it warps into disaster or victory is up to you. You don’t even have to rebel. All you have to do is be an engaged citizen.

Make it so.

Leo Morris, columnist for The Indiana Policy Review, is winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at [email protected].