Has SCOTUS Brought Protests on the Justices’ Heads and Homes?
May 12, 2022 by David Fowler
People have begun to protest the leaked U.S. Supreme Court decision that would overrule Roe v. Wade and Planned Parenthood v. Casey outside the homes of several Justices. I believe the Court has been fostering for decades the climate of threats and violence the Justices are now experiencing for the following reasons.
My assessment of the cause is not to condone anything, but to explain it. It rests in two things the Court has done over the last 100 years. First, it abandoned law. Second, it convinced America its judgments were the supreme law.
Beginning in 1925, in Pierce v. Society of Sisters, the Court began to abandon law and therefore the Rule of Law rightly understood. The law that the Court began to abandon was an understanding of law as pre-political, existing independent of any judicial ruling or enactment by the legislature branch. It was on this understanding of law that the rule of law rested; it was the law to which the judicial and legislative branches were subject in issuing judgments and enacting statutes, respectively.
In Pierce, the Court held that the rights of parents to direct the education of their children was rooted not in the God-ordained offices of mother and father rooted in woman and man, but in having “care and custody” of a child. Obviously, that begs the question of why certain persons should have care and custody of a child in the same way declaring in the leaked Dobbs opinion only that abortion “presents a profound moral question” begs the question, “Why?”
Pierce’s “unnatural” created-by-government-decision/action view of law,[i] properly called “positive law,” became the law of whoever had power, the only exception being the possibility that all power belongs to God and there is a law of God pertaining to the nature of all things and the relation of all things to all other things to which human authorities are subject.
The consequence of abandoning this understanding of law was well predicted by Jesus, “And because lawlessness will abound, the love of many will grow cold (Matthew 24:12, NKJV).
Love is bounded by the law of God (Romans 13:10), who is love and grounds all law. When that boundary is removed, love loses the protection God’s law gives to it. Love grows cold. It is like the plant that is denied the organic laws and tending (protection) that is necessary for it to flourish.
Violence comes to people from the former, and wilting comes to the plant by the latter. But really, the violence of God-less (i.e, devoid of God as Creator and sustainer) law will bring death to the living, both persons and plants. God-less law eventually brings death to institutions and to a society that embraces it.
The Supreme Court as an institution is going through its death throes now. It can only be resurrected by God and conformity to His law of life and death (Deuteronomy 30:15, 19; Romans 8:6).
God-less law is bad enough in its effects, but in Cooper v. Aaron (1958), the Supreme Court made itself a law-making institution, replacing its function of making only those judgments necessary to do justice between those litigating a particular dispute.
Referring to a decision of seminal importance (Marbury v. Madison (1803)) in which the Court declared it had a duty to judge the constitutionality of a law if rendering a judgment to resolve a dispute turns on it, the Cooper Court went far beyond what Marbury said:
Wrong and wrong. First, the Constitution makes each branch of the federal government equal and independent. None is supreme over the other.
The Court is free from the other branches of government (and the state governments) to decide how to resolve a dispute, by a judgment in favor of one party or the other. But the other two branches and their state counterparts are free to evaluate the rightness of the Court’s reasoning and decide how to respond to its judgment in carrying out their different duties. That sounds terrible to many, but it keeps law and policy in the hands of those elected by and accountable to the people. That is civil liberty.
Second, having gotten wrong the independence of the three branches of the federal government from each other, the Court then equated its interpretations of the Constitution with the words of the Constitution.
There you have it: If Roe is an interpretation of the 14th Amendment, and it was, and that interpretation is the “supreme law,” the equivalent of the Constitution's words, then why would people not be mad when the supreme law of the Constitution was changed by five un-elected, non-representative, appointed-for-life Justices?
It is the same sentiment of the colonists to actions of the Crown that evoked their disruptive actions.
The Court has been making its bed of God-less law (lawlessness) and substituting itself as the supreme law for decades and now, sadly, the Justices must sleep in it, literally.
[i] Many Christians have unwittingly succumbed to and conformed their thinking to this Godless view of law. I explain why that is so in my short monograph, Toward Christian Nihilism: A Short Study in Contrasting Policy Approaches. If you would like to read it, request a pdf version by email to info@factn.org.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
My assessment of the cause is not to condone anything, but to explain it. It rests in two things the Court has done over the last 100 years. First, it abandoned law. Second, it convinced America its judgments were the supreme law.
Abandoning Law
Beginning in 1925, in Pierce v. Society of Sisters, the Court began to abandon law and therefore the Rule of Law rightly understood. The law that the Court began to abandon was an understanding of law as pre-political, existing independent of any judicial ruling or enactment by the legislature branch. It was on this understanding of law that the rule of law rested; it was the law to which the judicial and legislative branches were subject in issuing judgments and enacting statutes, respectively.
In Pierce, the Court held that the rights of parents to direct the education of their children was rooted not in the God-ordained offices of mother and father rooted in woman and man, but in having “care and custody” of a child. Obviously, that begs the question of why certain persons should have care and custody of a child in the same way declaring in the leaked Dobbs opinion only that abortion “presents a profound moral question” begs the question, “Why?”
Pierce’s “unnatural” created-by-government-decision/action view of law,[i] properly called “positive law,” became the law of whoever had power, the only exception being the possibility that all power belongs to God and there is a law of God pertaining to the nature of all things and the relation of all things to all other things to which human authorities are subject.
The consequence of abandoning this understanding of law was well predicted by Jesus, “And because lawlessness will abound, the love of many will grow cold (Matthew 24:12, NKJV).
Love and Law Are Inseparable
Love is bounded by the law of God (Romans 13:10), who is love and grounds all law. When that boundary is removed, love loses the protection God’s law gives to it. Love grows cold. It is like the plant that is denied the organic laws and tending (protection) that is necessary for it to flourish.
Violence comes to people from the former, and wilting comes to the plant by the latter. But really, the violence of God-less (i.e, devoid of God as Creator and sustainer) law will bring death to the living, both persons and plants. God-less law eventually brings death to institutions and to a society that embraces it.
The Supreme Court as an institution is going through its death throes now. It can only be resurrected by God and conformity to His law of life and death (Deuteronomy 30:15, 19; Romans 8:6).
SCOTUS Made Itself the Supreme Law
God-less law is bad enough in its effects, but in Cooper v. Aaron (1958), the Supreme Court made itself a law-making institution, replacing its function of making only those judgments necessary to do justice between those litigating a particular dispute.
Referring to a decision of seminal importance (Marbury v. Madison (1803)) in which the Court declared it had a duty to judge the constitutionality of a law if rendering a judgment to resolve a dispute turns on it, the Cooper Court went far beyond what Marbury said:
This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land. (emphasis supplied)
Wrong and wrong. First, the Constitution makes each branch of the federal government equal and independent. None is supreme over the other.
The Court is free from the other branches of government (and the state governments) to decide how to resolve a dispute, by a judgment in favor of one party or the other. But the other two branches and their state counterparts are free to evaluate the rightness of the Court’s reasoning and decide how to respond to its judgment in carrying out their different duties. That sounds terrible to many, but it keeps law and policy in the hands of those elected by and accountable to the people. That is civil liberty.
Second, having gotten wrong the independence of the three branches of the federal government from each other, the Court then equated its interpretations of the Constitution with the words of the Constitution.
There you have it: If Roe is an interpretation of the 14th Amendment, and it was, and that interpretation is the “supreme law,” the equivalent of the Constitution's words, then why would people not be mad when the supreme law of the Constitution was changed by five un-elected, non-representative, appointed-for-life Justices?
It is the same sentiment of the colonists to actions of the Crown that evoked their disruptive actions.
The Court has been making its bed of God-less law (lawlessness) and substituting itself as the supreme law for decades and now, sadly, the Justices must sleep in it, literally.
[i] Many Christians have unwittingly succumbed to and conformed their thinking to this Godless view of law. I explain why that is so in my short monograph, Toward Christian Nihilism: A Short Study in Contrasting Policy Approaches. If you would like to read it, request a pdf version by email to info@factn.org.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
