With the announced retirement of Justice David Souter, President Obama gets his first chance to impact the court. The good news is that Justice Souter was a terrible judge, so I’m glad to see him go. The bad news is that Obama has repeatedly shown disdain for the Constitution, Federalism, Original Intent, and the general qualifications that most Conservatives require of prospective judges.

In discussing Souter’s departure, Obama stated “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook… I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” Actually, the role of the court is to apply the law dispassionately and uniformly. Feelings don’t matter. The Constitution and the framer’s intent matters. Abstract legal theory matters. Empathy is not a qualification for a Justice.

Mark Levin’s new book “Liberty and Tyranny: A Conservative Manifesto” does a brilliant job of defining the original intent of the Constitution and why it matters. If you have not read this book, buy it immediately. It should be required reading in every high school civics class. In his book, Levin states “the Constitution sets forth certain terms and conditions for governing that hold the same meaning today as they did yesterday and should tomorrow… There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether. If the Constitution’s meaning can be erased or rewritten, and the Framer’s intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it…”

“To say that the Constitution is a ‘living and breathing document’ is to give license to arbitrary and lawless activism… where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance.”

The Framers of the Constitution intended to create a central government with very limited authority. The 10th Amendment succinctly encapsulates this intent: “The powers not delegated to the United Stats by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As Levin states in his book, “when the federal government acts beyond its constitutional limits, it assaults the purest form of representative government by supplanting decision making at the state and local levels.”

Throughout the history of this country, the federal courts and most specifically the Supreme Court have been guilty of many of these constitutional assaults by overstepping their authority and scope. The Supreme Court is authorized by Section 2, Article 3 of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

One of the key questions the court is obligated to answer when hearing a case is does the court have jurisdiction. Is there a Federal issue? The courts routinely ignore this, resulting in bad decisions. The primary justification for this incursion is often the 14th Amendment, which was intended to extend rights to emancipated slaves, NOT kill Federalism. Below are 5 cases where the Supreme Court either overstepped its authority by deciding non-federal issues, made bad decisions not supported by the Constitution and original intent, or both. Each of these cases represents important policy issues for Conservatives that have been decided by judicial fiat rather than through legislative action. Specifically, abortion, State’s rights and intra-state commerce, treatment of terrorist prisoners, separation of church and state, and global warming. These are 5 reasons why Supreme Court Justices matter, and why Obama’s nomination must be thoroughly scrutinized.

1. Roe v. Wade (1973) – Roe v. Wade is a classic example of the court overstepping its authority AND rendering a bad decision. At issue was whether a state could limit the ability of its citizens to abort a pregnancy. Regardless of your opinion on the morality of abortion, Roe v. Wade was a bad decision because there was no federal issue. The 10th Amendment clearly delineates to the States the authority to establish laws governing the behavior of their citizens without interference from the Federal government.

In Roe, the court used the 14th Amendment as its justification for establishing authority, as well as for overturning the state law. Specifically, the 14th Amendment reads in part “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Where in the 14th Amendment does the court have jurisdiction, or does it prohibit a state law criminalizing abortion? In his dissent, Chief Justice Rehnquist succinctly summarizes why Roe was a bad decision: “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment… I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

In Roe v. Wade, the court imposed improper federal authority over the way states regulate their people. The beauty of the federal system is that it allows states and localities to establish rules and standards in variance from other states. Citizens are free to choose the set of laws under which they wish to live, to move, or the change the laws. As Levin states in his book “Mobility is perhaps the most important aspect of federalism. If the individual concludes he is hopelessly bound by what he considers to be a harmful decision by state or local authorities, he may, in the end, choose to live elsewhere – where the economic, cultural, or social conditions are more to his liking.” In Roe, the court invalidated the federal concept of mobility by creating a uniform standard on abortion that exceeded the court’s authority.

2. Wickard v. Filburn (1942) – During the Depression, Roosevelt passed a number of laws regarding the production of wheat in an effort to stabilize food prices. Roosevelt’s justification for imposing limits was the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3) “The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Roscoe Filburn was a wheat farmer who produced wheat in excess of the limits imposed by Roosevelt for his own personal consumption. He argued that since the wheat was for his own personal consumption, it was never intended for commerce and thus outside the scope of Congress’ authority. The government contended that if Filburn did not grow his own wheat, he would be forced to purchase it on the open market, effecting the market price of wheat.

The Wickard v. Filburn case, combined with the United States v. Darby Lumber (1941) case drastically expanded the authority of the federal government to control all aspects of production and consumption, even if the economic activity is entirely intrastate. In Darby, the court ruled “The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.”

In Wickard, the court expanded this to include completely local activities: “Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether in the absence of Congressional action it would be permissible for the state to exert its power on the subject matter, even though in so doing it to some degree affected interstate commerce. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”

This was a dramatic departure from the precedent established in Gibbons v. Ogden (1824) that federal powers only existed on commerce among states. “The word ‘among’ means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior….Comprehensive as the word “among” is, it may very properly be restricted to that commerce which concerns more States than one.”

As Levin puts it in his book, “Wickard swept away 150 years of constitutional jurisprudence, decentralized government authority, and private property protection… through a succession of laws and rulings, all three branches – the judicial, the legislative, and the executive – now routinely exercise power well beyond their specific, enumerated authority under the Constitution.”

The disdain that the court showed for the concepts of Federalism, limited government, original intent, and the 10th Amendment with these decisions is best summarized within the Darby ruling: “The amendment (10th) states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

This intrusion by the courts has given the federal government the power to regulate all aspects of our lives, far exceeding the intent of the framers.

3. Boumediene v. Bush (2008) – The Boumediene case was a writ of habeas corpus, consolidating the claims of six terrorists being held at Guantanamo Bay, Cuba. The case challenged the detention of the terrorists under the Military Commissions Act (MCA) of 2006. The MCA established that unlawful alien enemy combatants engaged in hostilities against the United States would be tried by Military Commissions, affording “judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions,” while specifically denying the terrorist the ability to claim rights under Geneva Conventions. Section § 948b of the act denied terrorists the right a speedy trial.

The majority ruled in Boumediene’s favor, declaring the MCA to be an unconstitutional restriction on habeas corpus, even though this was in direct opposition of previous court rulings, including Johnson v. Eisentrager (1950) which declared US courts had no jurisdiction over Germans POWs held in US controlled prisons overseas, because the prisoners were at no time on American sovereign soil. The majority held that even though the base at Guantanamo Bay is outside the sovereign territory of the US and that Cuba retains sovereignty under the Cuban-American Treaty of 1903 , that the US held de facto sovereignty. This is in direct conflict with prior precedent, international law, the treaty, and the claims of Cuba itself. In making this decision, the court granted unprecedented rights to those who illegally wage war against the US.

As Chief Justice Roberts wrote in his dissent, “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.”

Justice Scalia’s dissent is even more to the point. He summarizes the flagrant abuse of the court better than I ever could. “The game of bait-and-switch that today’s opinion playsupon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him ‘that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].’…”

“In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield… Some have been captured or killed… But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandos… Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers…”

“The Court today decrees that no good reason to accept the judgment of the other two branches is apparent’…’The Government,’ it declares, ‘presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.’ What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”

The court asserted its right to govern the conduct of these prisoners over the judgment of the other two branches of government, even though two years earlier in Hamadan v. Rumsfeld (2006), the court had instructed the Executive Branch to return to the Legislature to get the authority to try these prisoners in Military Commissions; exactly what Bush did with the MCA. As Justice Scalia opined, it “turns out they were just kidding.” With the Boumediene case and the related cases preceding, the court circumvented the Executive’s authority to wage war, making the country less safe.

4. Everson v. Board of Education (1947) – The Everson case established in law the concept of a “separation between church and state.” Everson was a taxpayer in New Jersey who protested the use of tax dollars to fund school transportation to private schools, including parochial schools. Although the court ruled against Everson, the language in the majority’s decision vastly limited the permissible activities regarding government support of religion.

Essentially the court ruled that the establishment clause of the 1st Amendment, preventing the Federal Government from creating a government religion, prevented the Federal Government from providing any financial support to any religious institution. Further, the court used the due process clause of the 14th Amendment to apply this same standard to the 50 states. The majority stated:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”

The 1st amendment was never intended to limit the ability of states to establish or support religious entities. The language of the 1st amendment specifically limits its scope to applying to Congress. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This country was founded on a Judeo Christian ethic. When the Constitution was written, many of the individual states had official state religions. For instance, Connecticut was officially a Congregational state until 1818. The 1st Amendment was intended to limit the authority of the Federal Government regarding the creation of a national religion. Under the 10th Amendment, the states had discretion for the role of religion in government.

To justify their decision in the Everson case, the court cited the 14th Amendment’s due process clause. Specifically, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The court ruled that the 14th Amendment applied directly to the 1st Amendment, thus enjoining the States from engaging in religious activities. “The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual’s religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.”

With the Everson decision, the court overturned the one of foundations of the country, namely the freedom of the individual states to decide for themselves the role of religion within their society. This ruling has been used to justify the removal of individual prayer from schools, the removal of nativity scenes from public grounds, and the removal of the 10 commandments from court buildings. Rather than follow the political process within their localities, the opponents of religion in America have used judicial proclamation to violate the rights of millions.

5. Massachusetts v. EPA (2007) – In 2003, the head of the EPA correctly ruled that the agency did not have the authority under the Clean Air Act (CAA) to regulate the output of carbon dioxide (CO2) gas from motor vehicles. Environmental lobbyists in Massachusetts and nine other states convinced the states to sue the EPA to force them to regulate CO2 because of the supposed link between CO2 emissions and anthropogenic global warming. The Court ruled against the EPA, and required the agency to regulate CO2, thus overstepping its authority and circumventing the role of the Executive and Legislative branches in setting policy.

At issue was whether CO2 constitutes a pollutant. The CAA section 202A1 reads in part “the Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

Section 112B1 lists the specific chemicals Congress considered air pollutants. In addition section 112B2 provided provisions for the EPA to extend the list. “The Administrator shall periodically review the list established by this subsection and publish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise…”

The States argued that this definition of air pollutants was so broad, that effectively anything the EPA says is a pollutant is a pollutant, regardless of scientific facts. The Court agreed, declaring “the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical… substance[s] which [are] emitted into… the ambient air.” Under this definition, so is steam.

CO2 is NOT a pollutant. It is a naturally occurring trace compound that we all exhale. Since the air is composed of Nitrogen, Oxygen, and CO2, then declaring CO2 a pollutant is to declare that the air is being polluted by air. CO2 is a fertilizer that causes plants to grow. Justice Scalia points out in his dissent “In order to be an ‘air pollutant’ under the Act’s definition, the ’substance or matter [being] emitted into… the ambient air’ must also meet the first half of the definition-namely, it must be an ‘air pollution agent or combination of such agents.’ The Court simply pretends this half of the definition does not exist.” Irrespective of the fact that CO2 cannot be considered a pollutant under any reasonable definition of the word, the real problem with this case is that the Court overstepped its authority again and circumvented the will of the people by legislating from the bench.

As Chief Justice Roberts declared in his dissent, “Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’ Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change. Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts.”

In other words, the court had no business decided whether CO2 is a pollutant. That was a question for the Executive and Legislative branches. Congress had the power to amend the CAA to include CO2 if it so desired. That it chose not to indicates that the intent of the law did not include the regulation of so called green house gases. The court chose to legislate from the bench, rather than return the parties to the legislative process.