Will Rogers’ famous claim about finding his best material in the newspapers was vindicated again this week. Of the many amazing headlines I have seen, this one was (in Jimmy Durante’s immortal words) "da amazinest":
"New Jersey High Court Issues Deadline to Legislature on Gay-Union Benefits".
Of course, this describes a recent New Jersey Supreme Court ruling that reporters called both a "defeat" and a "victory" for homosexual activists. A defeat, because the Court did not recognize a "right" for gay couples to marry. A victory, because three of seven justices said gays should have that right, and the other four said New Jersey’s Constitution requires the state to give same-sex couples the same benefits already furnished to unmarried opposite-sex couples. The Court gave the New Jersey legislature 180 days to enact legislation establishing such benefits.
The 180-day deadline was the truly "amazin’" part of the story because the New Jersey Constitution says nothing about the Supreme Court "ordering" the legislature to pass laws or issuing deadlines. No article says, "the legislature and/or the executive shall carry out such directives as the Supreme Court may issue." The Court can set legislative deadlines and issue orders until the cows come home, but no one has to obey them.
This is so because state constitutions are modeled after the U. S. Constitution, which limits the Supreme Court’s purview. The Court may review and strike down laws enacted by the Congress, but the Court has no authority over how the other branches conduct their business or which laws they enact – except after the fact, as noted. It is the same in New Jersey.
The executive and legislature actually have more power over the Courts than vice-versa. Congress can fence off whole areas of law from the Court. The president nominates justices, and the Congress can approve or reject them. The Congress can also impeach and remove justices. But the executive holds the high cards: the power to enforce (or not enforce) laws, including court decisions. (The border-control fiasco clearly shows how decisive this power is.)
Many citizens fail to understand these constitutional facts. Students once learned them in school, and (legal) immigrants studied them before becoming citizens. But that time is past. To the casual observer the courts appear firmly in charge. If you polled 100 citizens, 85 or 90 of them would agree that courts are the final authority, trumping actions of any elected officials. But it ain’t so.
Of all people, legislators at the state level – and congressmen and senators at the federal level – should know which powers the branches have. Every New Jersey legislator surely knows that the Supreme Court is completely out of bounds with its 180-day deadline. Legislators can give the Bronx Cheer, make rude noises with their armpits, and refuse to act. The Court might issue other orders, but the legislature can ignore them as well.
In "The Adventure of Silver Blaze", Sherlock Holmes mentioned "the curious incident of the dog in the night-time", prompting another to say: "The dog did nothing in the night-time."
"That was the curious incident," said Holmes.
Our "curious incident" is legislators and executives failing to call the courts on these turf-incursions. A few months ago Speaker of the House Dennis Hastert raised cain when FBI agents raided the congressional office of Rep. William Jefferson (D-LA). (Authorities suspected Mr. Jefferson of hiding evidence of a crime.) A court-issued search warrant said agents could enter the congressman’s office and seize materials without his permission.
But permission from the Congress was needed, as the Speaker took some pains to point out. The numerous journalists and pundits who mocked Mr. Hastert for getting excited "over nothing" – or who even suggested he should let the FBI hammer a Democratic member – displayed their ignorance of both "separation" and the strictly enumerated powers the doctrine entails. (Executive-branch cops raiding a congressman’s office is not among them.) The president saw his error, agreeing to seal seized materials for 30 days and clear with the Speaker the retention of evidence clearly relevant to a criminal proceeding.
One imagines New Jersey legislators reacting similarly if the governor sent police to toss a colleague’s office. Why then, one wonders, are they not yelling bloody murder over the Court’s "deadline"? They must know it’s bogus. Why do they (and the governor) act as though the Court’s orders are legitimate? – as though they have no option but to obey?
The short answer, I suggest, is that legislators don’t mind obeying because they mostly agree with the ruling. The long answer is that they like the Court taking the heat on controversial issues most voters probably dislike. Had the legislature tried to enact marriage-like benefits for gay couples, there would have been political hell to pay. Instead, the Supreme Court did the dirty work, allowing legislators to piously claim: "Our hands are tied; it’s a Court order."
For the past half-century courts have provided cover like this for state and federal legislators, allowing them to please (or mollify) constituents on both sides on controversial issues. They can say to a decision’s opponents, "I’m opposed to this, but the courts have ruled. It’s not my fault." Proponents only care that the courts have given them what they want.
This might explain why polls show that majorities of voters think the congress stinks, while equally large majorities say, "my guy is pretty good". He looks good because he rarely has to stake out a politically risky position on anything. Such a deal.
Unfortunately, each encroachment by the courts digs the hole a little deeper out of which the executive and/or legislature will have to climb at some point. Inevitably, a day will come when they will not be able to swallow some "order" a court gives. They will have to defy it, or risk fatally damaging their own branch of government. When they do, contending with the court supremacy they created for their own political convenience will be a real scrap.
That day almost came when someone sued to prevent a prayer at the 2005 Presidential Inauguration. The Supremes rejected the suit and ducked the issue. Had they ruled against the prayer, Mr. Bush would have had to choose whether to accept this new incursion – absurd, since the executive may conduct his business as he sees fit – or defy the Court openly. The justices saw that this was not a good time to present such a test.
But Judgment Day must come on court-encroachment. When it does, a constitutional crisis beyond anything in the Republic’s history will arise. The stuff will (as they say) "hit the fan".