The Supremacy of Five

Each summer America learns about the supremacy of five. Two years ago, five told us that equality under the Constitution means “not every decision influenced by race is equally objectionable” even though a “core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.”

A year ago, five informed us that they couldn’t (and wouldn’t) decide ­— at least not then —­ whether the phrase “one Nation under God” in the Pledge of Allegiance raised any First Amendment concerns because considering such “a weighty question of federal constitutional law” was “improper” when “hard questions of domestic relations” were “entwined inextricably.”

And, just a month ago, five instructed us that the government can lawfully and constitutionally take our homes for private development because the Fifth Amendment’s “Takings Clause largely operates as a conditional limitation, permitting the government to do what it wants so long as it pays the price.”

In each case, just five decided —­ no more, no less.

Of course, the ever-evolving but constantly-controlling five make up a bare majority of the Supreme Court of the United States, the highest court in the land. And these justices are, without doubt, among the smartest in the country, educated at Stanford, Harvard, Yale, Northwestern, Columbia and even Oxford. But the five were never elected by anyone. Indeed, they answer to no one—­ not the president of the United States, the Congress, nor even “We the People.”

Constitutionally speaking, Supreme Court justices “hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office,” meaning they can’t ever be fired or even take a pay cut. Such insulation from the whims of popular sentiment certainly promotes fair and independent judging, just as it equally encourages arbitrary and unchecked policymaking. And that, at its very core, is what the ongoing Supreme Court battle is all about.

Last Tuesday, President Bush named Judge John G. Roberts, Jr., to be the next justice of the Supreme Court of the United States. As the potential replacement for Justice Sandra Day O'Connor, the justice who most often sat in the fifth seat, Roberts could find himself to be a member of the majority of five.

Almost immediately in response to the nomination, the media and its army of self-appointed “experts” started speculating as to how Roberts would rule on the most contentious issues of the day, from abortion to capital punishment, from affirmative action to gay marriage, from school prayer to the Pledge of Allegiance, from environmental protection to property rights, from campaign finance to online pornography. But as sensational and contentious as those subjects may be, the battle over the vacancy created by the justice who had most often sat in the fifth seat is defined in the media only on the surface by policy outcomes. The real conflict is over the proper role of unelected judges in our representative government that derives its power and legitimacy “from the Consent of the Governed.”

Indeed, there is nary a doubt that five have the final word on what the “supreme Law of the Land” means and, for that matter, even says. The question is really whether they exercise that awesome power judiciously. Thus, the real battle lies far beneath the sound bites perfected through public opinion polling. It’s not between Republicans and Democrats or even the Right and the Left, but between those who believe our government’s power is derived from and “retained by the people” and those who don’t.

For more than two centuries now, “We the People” have been telling our government to respect some self-evident truths. These basic instructions are written down clearly and concisely. And, just as clearly, we told our government that only an elected super-majority could change these instructions. But, every June, America learns that there is another way to rewrite our government’s rules: by convincing only five.

Thus, the current Supreme Court battle is being waged across the political spectrum by people who truly believe in “government of the people, by the people, for the people” to confirm a justice who will be one of five who understands that what the Constitution says is more important than what the new justice personally believes.

Reid Alan Cox is the General Counsel of the Alexandria, Va.-based Center for Individual Freedom.