Almost five years ago, I was checking out at the grocery store when an alert from my iPhone stopped me in my tracks.
“U.S. Supreme Court Justice Antonin Scalia found dead.”
I gasped, catching the attention of the cashier and my friend who was grocery shopping with me, both of whom immediately asked what had happened. "Scalia was just found dead!" I exclaimed.
Both looked at me blankly as I tried to explain the magnitude of what had transpired.
I couldn’t believe they hadn’t at least heard of Justice Scalia.
But the reality is, most Americans couldn’t name a U.S. Supreme Court Justice for you, even fewer could name all nine, and an even smaller percentage than that could adequately articulate the role of a justice in our system.
As a refresher in basic civics, the legislative branch of government makes the laws, the executive branch carries out the laws, and the judicial branch interprets the laws.
What that means is judges aren’t supposed to decide on cases based on the outcome that they wish to see but rather based on what the law and the Constitution actually say and how they would apply to the merits of the case.
Courts were not created to make sweeping changes to the law through their decisions.
If people don’t like what the Constitution says, then they need to go about changing it with the processes and procedures providing for these reforms.
Unfortunately, there are many people who would rather use the courts to set policy, and that mindset has caused a great deal of friction in our society.
This issue has been on full display this month as the confirmation hearings for U.S. Supreme Court nominee Judge Amy Coney Barrett took place.
Throughout the hearings, senators from both parties lined up to quiz her over her personal policy positions and admonish her for not promising to vote on future cases, should they come up, as they would wish.
Online, many citizens joined them – criticizing Barrett’s unresponsiveness to senators’ (inappropriate) questions and fearmongering over her assured end of everything from Roe v. Wade to the Affordable Care Act.
While it can be assumed that the average citizen is unaware of various judicial theories that guide a judge in their interpretation of the law, or ethical standards for judges that preclude them from weighing in on hypothetical cases, senators – many of whom hold law degrees themselves – should not get as much of a pass.
Instead, their role in these procedures, which they increasingly use to grandstand and fundraise off of, contributes to the politization of the courts and an alarmed American public who both expect judges to behave like kingmakers and react in horror when those appointees might have different political persuasions than their own.
None of this is healthy.
In a functioning system, the people would elect and then petition their representatives to create and change laws as they see fit.
The courts would then merely review the laws, when challenged, and ensure that the laws did not violate our rights.
This is the proper way to achieve policy wins.
But it isn’t easy.
My organization, Conservatives Concerned About the Death Penalty, exists to educate people on the conservative end of the political spectrum on the failings of the death penalty.
And there’s no shortage in sight for items for us to talk about.
As is true with most government programs, the justice system is prone to error, abuse, bias, and corruption. One person has been exonerated from death row for every nine executions.
We spend millions of dollars on a few cherry-picked death penalty cases each year, overwhelmingly for cases with white victims and defendants who are either poor, people of color, or both.
And we get nothing for it.
The death penalty is not a deterrent, and it wastes money that should go towards helping victims, solving crimes, or actually preventing violence in the first place.
When people are presented with new, convincing information, they often change their mind on policies, and the death penalty is no exception to that.
Every year, dozens of Republican lawmakers now sponsor bills to repeal capital punishment, and they even pass them.
But that takes time.
But it took time. In decades past, conservatives were more likely to support the death penalty.
In order to change the laws, the culture needed to change first.
This is hard work.
It’s time-consuming. It requires convincing others of your viewpoint.
We don’t win by forcing our beliefs on others or by relying on judges to do it for us.
If we were to, we would likely only find temporary wins.
Such was the case in the 1970’s when the U.S. Supreme Court voted to overturn the death penalty.
The decision lasted only long enough for states to fix their statutes and bring back the sentence, which most of them did because the work hadn’t been done to convince people to change their hearts and minds — and then change the laws.
That being said, there is a significant role for the courts to play in this equation — and it’s one they’ve often not been vigilant about.
The purpose of the courts is to ensure that the Constitution is being followed and that government policies are not violating individual rights.
There are an abundance of cases where that very thing has occurred in the justice system, especially within death penalty cases.
But the courts have been slow to take on these cases — denying Americans an important check and balance in our process.
In a representative republic, you don’t always get your way. Thankfully, those of us committed to the Constitution know that and don’t believe in forcing our policy views on others through judicial activism.
It’s time for those with political designs to return to getting their wins the right way.
The goal of politics is to convince others of your views.
Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. Read Hannah Cox's Reports — More Here.
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