Casing the Situation

Dr. Malcolm Cross

Last week the U. S. Supreme Court handed down rulings on two important and well-publicized cases.  The policy implications for each case are controversial and no doubt unpopular with large segments of the population.  But the precedents set or strengthened by these cases concerning the Supreme Court’s role in public policy making of unelected officials—federal judges and bureaucrats—should be welcomed by all who believe in democratic government.

In Garland v. Cargill, the Supreme Court ruled 6-3 that it had been unconstitutional for the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) in 2018 to ban bump stocks—accessories which, when added to semi-automatic rifles, enable shooters to fire between 400 and 800 rounds per minute.  The monster who shot up a Las Vegas hotel in 2017, killing 60 people and wounding 869, had used bump stocks to enhance his weapons’ firepower.

The ATF had determined that outfitting a rifle with a bump stock effectively converted it into a machine gun, the possession of which by private citizens is currently illegal.  But the Supreme Court ruled that only Congress, not the ATF, possessed the legislative authority to reclassify guns.

In the other case, FDA v. Alliance for Hippocratic Medicine, the Supreme Court, according to CNN, “unanimously rejected a lawsuit challenging the Food and Drug Administration’s approach to regulating the abortion pill mifepristone, allowing the drug to stay on the market.”  Justice Brett Kavanaugh, writing for the Court, said the Alliance and other pro-life groups lacked “standing” to sue because their members were not being personally hurt by the availability of mifepristone, and to allow them to sue anyway would open the door to lawsuits by others seeking to regulate activities which don’t hurt them but which affect others.  

No doubt gun-control advocates dislike the ruling in the Garland case while pro-lifers likewise dislike the outcome of the FDA case.  But the results of both cases are nonetheless to be welcomed by those who believe the Supreme Court’s role in public policy making has become excessively large.

Over the centuries, the Supreme Court has ruled that:

  • Slavery is a constitutionally protected property right;
  • Racial segregation is constitutional as long as separate facilities are still equal;
  • American citizens of unpopular ancestry may be incarcerated, without due process, in concentration camps;
  • Segregation isn’t constitutional after all;
  • Criminal suspects in state and local felony and misdemeanor cases are entitled to the same due process as defendants in federal cases;
  • Gay marriage is not a constitutionally protected right;
  • Gay marriage is a constitutionally protected right;
  • Abortion is a constitutionally protected right;
  • Abortion is not a constitutionally protected right.

What all these cases have in common is that they had profound impacts on public policy without proper input from the democratically elected Congress or other legislatures.  Moreover, each case, regardless of the particular policy area it addressed, strengthened the precedent by which unelected rather than elected officials could make decisions of such great magnitude—which is why last week’s decisions are especially welcomed.

In the Garland case, the Supreme Court is saying the elected Congress, and not the unelected ATF, should determine what is, and what is not, a machine gun.  One hopes that the next time the Supreme Court decides to hand down a ruling with major public policy implications it will remember the value it’s currently putting on the role of democratically elected decision makers.  Just as it’s putting limits on the powers of an unelected bureaucracy to make policy, so too should it consider more limits on itself as well.

And in the FDA case, the Supreme Court, by limiting the right of groups to sue if they lack standing, is automatically limiting the opportunities it might otherwise have to weigh in on important issues as well.  This, too, will limit policy making by unelected governmental bodies.

Of course, one may well ask, what if the Congress, or state legislatures, or local legislative boards decline to enact policies thought to be beneficial.  Shouldn’t one be able to turn to the Supreme Court to help fight racism, sexism, etc., etc?  Well, anyone can file any lawsuit one wants, and there’s always a possibility one can extract from the courts what one cannot extract from a democratically elected legislature.

But in a political system with the opportunities for citizen participation, we have, democracy can best be enhanced if we work within the legislative process first before going to the courts.  And if we don’t like what our legislatures are doing, we should devote less time and energy to lawsuits, and more time and energy to either changing our lawmakers’ minds or changing our lawmakers through the ballot box.

Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024).  He was Mayor pro-tem of Stephenville from 2008 to 2014.  He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015.  He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District.  Views expressed in this column are his and do not reflect those of The Flash as a whole.

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