The courts have become the place where some of the most important issues of American social and moral life are now settled. Should abortion be legal and under what circumstances? Ask the court. Should the State of Texas be permitted to have a monument displaying the Ten Commandments? Ask the court. Can a state outlaw certain forms of pornographic material it deems offensive to minors, or to the moral sense of the community? Ask the court. Do homosexuals have a “right to marry” that no legislature can constitutionally deny? Ask the court.

Since the courts now operate as a kind of super-legislature (super because the legislature’s rules can be vetoed by the courts, but the court’s rules can be vetoed by no outside body), one of the most important questions in American politics has become: Who gets to sit on that august body? What could be more consequential for determining the rules under which we live than who occupies the nine seats of the Supreme Court? These positions are of enduring importance because their occupants serve for life.

Another reason that court nominations have become a battleground is because the Supreme Court is evenly divided, with the liberals and conservatives controlling an equal number of votes, and “swing votes” like that of Sandra Day O’Connor typically determining the outcome. Thus, one or two new appointments could swing the balance of the court toward social conservatism. This is an especially painful prospect for liberals who have lost the presidency and the senate and the House and the state legislatures and now must rely on the courts to enact a liberal social agenda that has little hope of passing the legislative bodies or being enforced by the executive branch of government.

So for the foreseeable future America is reduced to the ridiculous spectacle of seeing major social and moral questions being resolved not by national consensus or debate or even voting but by recourse to the mystical question, “How will Sandra Day O’Connor vote?” The nation’s eyes are riveted on this one woman whose whimsical views on school prayer, affirmative action, abortion, and other issues now assume the status of settled law.

There is only one way out of this bizarre and unhappy place, and that is to return to the American people the right and the responsibility for making the rules under which they live. This is not to say that majorities decide everything. Minorities have enumerated rights against majority rule, and yes, it is the job of courts to enforce these rights. But the right to abortion, like the right to gay marriage, is nowhere contained in the Constitution. These are not rights but rather ideological causes masquerading as constitutional privileges.

The reason that courts invent these rights is that the people who want these things cannot persuade a majority of their fellow citizens to go along with them. The courts are essentially their political instrument for achieving a result that they cannot win through the give-and-take of democratic debate.

Scalia holds his ground in a spirited dissent

Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 11, n. 10, the Court acknowledges that the "Establishment Clause doctrine" it purports to be applying "lacks the comfort of categorical absolutes." What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes id does not. The footnote goes on to say that "[i]n special instances we have found good reason" to dispense with the principle, but "[n]o such reasons present themselves here." Ibid. It does not identify all of those "special instances," much less identify the "good reason" for their existence.

Antonin Scalia

Still standing... at least for now.

The granite monument bearing the Ten Commandments stands outside the Courthouse in Austin Texas. It was given to the State in 1961 by the Fraternal Order of Eagles.

The monument of the Ten Commandments on the Texas Capitol grounds can stay where it is. That's the result of a split decision by the U.S. Supreme Court on Monday morning.

The justices found that the six-foot granite monument can remain on government property for historical reasons. The monument has stood there for more than 40 years.

Justices announced the ruling the same day it said Ten Commandments displays at Kentucky courthouses violated the separation of church and state.

The high court voted 5-to-4 that those specific inside displays were not appropriate without other neutral displays.

News 8 Austin

The High Drama of the Ten Commandments

What began as a courtroom exchange between a probate judge and a 16 year old juvenile offender in 1946 has evolved into the high drama of Supreme Court rulings on the national stage.

Rather than sentence a young man to the State Training School, Judge E. J. Ruegemer ordered him to learn the Ten Commandments. Surprised to learn that the boy had never heard of them, the Judge contacted a local pastor to make sure he got instruction.

So convinced was Judge Ruegemer that the Ten Commandments were the oldest code of conduct handed down to man providing essential moral guidance, he later initiated the Ten Commandments Project as chair of the Fraternal Order of Eagles youth guidance program.

While legendary movie director, Cecil B. DeMille, was filming The Ten Commandments in Israel he learned of Judge Ruegemer's project and called to suggest placing bronze plaques of the Decalogue in courthouse squares, city halls and public parks as a reminder to youth of their great importance.

After some creative collaboration the pair decided to have the commandments carved into granite monoliths and donated to public settings.

To date, the Fraternal Order of Eagles has given over 100 granite monoliths and thousands of plaques. Many of the monoliths and plaques have become the subject of tremendous controversy over the constitutionality of the public display of religious symbols, creating a drama that Judge Ruegemer and Cecil B. DeMille would scarcely have imagined.

Rehnquist does not resign from the bench.

"Of course, the Ten Commandments are religious -- they were so viewed at their inception and so remain. The monument therefore has religious significance."

"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause."

Last week’s New London, Connecticut, eminent domain decision had the liberals on the Supreme Court, those who supposedly fight for the little guy, side with big business. What’s going on here? How can one group of private citizens take the homes of a poorer group of private citizens? Easy. You just make a legal case that it benefits the public good by increasing tax revenue and you can take anyone’s home you want!

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