Courts Now Decide Winners, Losers of Our Political Fights

We live in an era of division.

Cooperative bi-partisan legislation on anything significant is almost exclusively a thing of the past — not a future prospect. Amidst that deadlock, 2022 is set to prove that the most impactful decisions in America today are being made by the judiciary.

Inflation. An unprecedented border surge. The war in Ukraine. China threatening Taiwan. Biden’s big spending and tax plans.

The November 2022 midterm elections were already slated to be fought over major issues like few midterms preceding it.

Then, the leaked news of a possible over-turning of Roe v. Wade hit the wires.

The largest and most divisive social issue of the last 100-plus years in American history.

Roe is now front and center. Protests have begun and the unprecedented leak could well be just a prelude to the biggest political fight of the 2022 campaign and election season.

Who is at the center of the abortion debate?

The United States Supreme Court. That same Court that has made some of the largest decisions in America over the last decade — decisions often larger than those made by Congress.

For example, during the Obama administration, the Democrats passed Obamacare (the Affordable Care Act) without a single Republican vote.

Immediately upon its passage, lawsuits began to fly over the law's particulars.

Those lawsuits were legislative and constitutional battles over individual mandates, employer mandates, religious exemptions, fees charged to states, the waiving of employer mandates, contraceptive insurance mandates, states versus federal exchanges and even The Little Sisters of the Poor.

Noticeably absent when those issues were raised by those lawsuits was an attempt by presidents and lawmakers to compromise on the issues and pass legislation to address opposing legal views.

Rather than work out their legal differences, the divided political camps of legislators and presidents let the high court decide nuanced policy after policy related to Obamacare.

Prior to that, in 2008, in deference to the Second Amendment, it was the Supreme Court deciding that individuals had a right to possess a firearm at home for self-defense.

In 2015, the Supreme Court decided what was then the most controversial social issue of the day: gay marriage. The issue was formerly a matter of state policy. Regardless of where you are on the issue, again, there was no effort to create a consensus among legislative branches to work out a compromise or consensus at the state or federal levels.

Instead, the momentous issue was decided once and for all by the Supreme Court.

Meanwhile, the Supreme Court has decided major components of our immigration policy over the last decade, including 31 cases since 2015 with six more pending.

In the 1700s and 1800s, the Supreme Court decided but 15 immigration cases.

Such is the power of the Supreme Court today and also the reliance placed upon that Court.

But, is that a good thing?

At the dawn of our country, Thomas Jefferson issued this warning about the growing power of the Courts: "The great object of my fear is the federal judiciary. that body, like Gravity, ever acting, with noiseless foot, & unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing insidiously the special governments into the jaws of that which feeds them . . . let the eye of vigilance never be closed."

Nearly 200 years later, Justice Antonin Scalia, when dissenting in one of the Obamacare cases, voiced a similar criticism.

Scalia wrote, that with respect to the case of "In National Federation of Independent Business v. Sebelius . . . this Court revised major components of the statute in order to save them from unconstitutionality."

In short, the Supreme Court is and has been making law with likely much more to come.

Now, the highest court in the land finds itself at the center of the largest social issue debate of our time. This time, however (and ironically) the leaked draft opinion would turn the power to decide the issue back to the states and out of the hands of Supreme Court.

Even if that opinion is made final, however, it will not change this bare political fact. Our courts have become great power centers deciding the winners and losers of our political fights.

Tom Del Beccaro is an acclaimed author, speaker and national columnist as well as a radio and television commentator. Tom is the Chairman of carevival.com. Read Tom Del Beccaro's Reports — More Here.