We’re Living Through an Era of Judicial Supremacy

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RUSH: I have some thoughts on the Supreme Court ruling that happened that I want to get into and share with you today because it’s even worse than what my original instincts about it were yesterday, and I’ve come to this realization with the help of Daniel Horowitz at Conservative Review again. He basically has laid out what we’re up against.

What we are up against is not liberal judges and conservative judges and Republican presidents coming up with the right appointees. That’s not what’s going on. What’s going on is that we are living at a time in the so-called American experiment where the judicial branch believes it is supreme over the other two branches. We are having a direct problem with judicial supremacy, and you can see it in the ruling that came down on DACA.

You can see it in any number of rulings. But the way it’s manifesting itself… I didn’t say it that way yesterday or the day before, but this is exactly what I was trying to get at. We had a caller yesterday who tried to tell me, “You know, you are wrong. Trump just has to redo this damn executive order, and the court said just do it the right way and we’ll get you what you want.”

I said, “You really believe that?” That might be what they said! Trump is never gonna get the Supreme Court to rule in his favor on this, and the reason why is the purpose of this Supreme Court as to make sure that the Obama presidency is not unraveled. Much of the Obama presidency was enacted via Obama executive orders, because Obama could not get legislation passed to affect his agenda, to implement it.

He had a big thing in Obamacare, but, I mean, that didn’t even get a single Republican vote. Contrary to what everybody thinks, Obama was not that popular. But there’s another factor, and that factor is that Congress — and this has been the case for a number of years or maybe even decades. They’re perfectly fine with the Supreme Court being the final authority. It takes the pressure off of them. It takes the heat off of them.

It’s like Josh Hawley from Missouri said earlier this week, “We don’t do legislation in the Senate anymore. We don’t do legislation in the House anymore. The Supreme Court’s where laws are coming from. The judicial branch is where laws are being written. The Supreme Court is where laws are being decertified as unconstitutional,” and the legislative branch is perfectly happy with it.

They don’t have to do the heavy lifting. They don’t have to get into any area of controversy. They don’t have to take on anything that might damage reelection or fundraising. The court, as is a human nature characteristic, is happy to take on this new power. But we do have… We’re living in a moment where the Supreme Court — and the entire judiciary — think that they are supreme over the other two branches, and you can see it.

You can see it in the wording of the majority opinion that Roberts wrote on the DACA thing. But it boils down to, if you want to put politics in it — and you can’t keep the politics out of it. What it boils down to is, the practical result of all of this is that this Supreme Court is making sure the Obama administration is not unraveled by Donald Trump.

Trump wrote his own executive order to get rid of Obama’s executive order, and the Supreme Court said, “Well, yeah, no, Obama’s executive order survives. You can’t get rid of his executive order the way you did it. You gotta go back and do it again.”

Well, they may go back and do it again. I’m gonna tell you: The result’s gonna be the exact same. They’ll come up with another way of denying Trump what he wants to do, what he promised to do on DACA, because the objective is to make sure — for whatever reasons — the Obama presidency is not unraveled.

BREAK TRANSCRIPT

Let me give you Trump’s tweet on the Supreme Court ruling, ’cause I think all of this stuff dovetails. The president tweeted, and this was just this morning about 8:15: “The Supreme Court asked us to resubmit on DACA, nothing was lost or won. They [the court] ‘punted,’ much like in a football game …

“We will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court’s ruling & request of yesterday. I have wanted to take care of DACA recipients better than the Do Nothing Democrats, but for two years they refused to negotiate,” the Democrats, Congress. “They have abandoned DACA. Based on the decision the Dems can’t make DACA citizens. They gained nothing!”

No, they gained everything.

They gained everything!

What the Democrats wanted is, “Supreme Court Tells Trump No,” and they got it. “Supreme Court Tells Trump to Go to Hell,” and they got it. “Supreme Court Tells Trump, ‘You Don’t Know What You’re Doing.’” “Supreme Court Tells Trump, ‘You Can’t Do it This Way. Go Back, Figure Out How to Do it Right Like Any Other Normal President Would, and Tell Us Again How You Want to Do it.”

However it is reported, the Democrats win big because it’s reported as, “Gosh, this guy Trump has no idea what he’s doing!” “Supreme Court Overrules Trump,” “Supreme Court Says ‘No’ to Trump,” and then you have the ancillary stories: “Most Conservative Court in History Tells Conservative President (Raspberry!)” They’re getting everything they want out of this. This essentially is, ladies and gentlemen, the court saying that Trump cannot get rid of anything Obama did unilaterally.

“If Obama did it with an executive order, sorry, Mr. President, you can’t get rid of it.” I don’t think anybody realizes this. I think… Here, let me grab sound bite number… I think it’s number 1 and 2. I don’t have it right in front of me. Shannon Bream had Lindsey Graham on last night, and she played him a clip from this program. The clip that they chose makes no sense here, but I have to play this to set up Graham’s response, so here’s sound bite number 1…

BREAM: I want to play something is from Rush Limbaugh, because he said that he thinks a lot of the establishment folks in Washington want to do whatever them to stop President Trump, and I don’t know if he’s including the Supreme Court, but here’s what he said today…

RUSH ARCHIVE: But the thing they want is what they’ve already got: “Supreme Court Says ‘No’ to Trump.” “Trump,” whatever the headlines are, they’re devastating — and it’s all personal.

RUSH: Now, when I read that when I got the sound bite roster, I said, “What the hell was I talking about?”

Shannon Bream… Shannon, don’t get mad at me here, but they cut that clip of me in such a way that I don’t even know what I was saying! I don’t know how you did. But I think it was a derivative of the point that I just made:

The Democrats and the media got exactly what they want.

“Supreme Court Says ‘No’ to Trump!”

“Supreme Court Overrules Trump!”

Well, Lindsey Graham was her guest, and she said to him, “A lot of people think that the headlines are overblown because they didn’t lose on the merits of the case, and it didn’t tell the Trump administration that they couldn’t actually do it. But if you saw the initial explosion in the media, the headlines were all, ‘This is a terrible day for the president.’ He even tweeted, you know, ‘Do you think Supreme Court doesn’t like me?’”

Here’s what Graham said…

But if you saw the initial explosion in the media, the headlines were all: This is a terrible day for the president. He even tweeted, you know, do you think the Supreme Court doesn’t like me? Here’s what Graham said.

GRAHAM: I understand the president being disappointed. I disagree with the court. But here’s what the court said. You can rescind the policy of Obama. You just have to do it differently than you chose to do it. It’s not if you can overturn the DACA program. It’s how you do it. It’s not if; it’s how. So the president, Trump, what can you do? You can issue a memo tomorrow declaring why you think the DACA program should be set aside, and I guarantee you you’ll win if you do it the way Roberts says.

RUSH: I just don’t think that’s the case, I’m sorry, because I don’t think Roberts intends to allow Trump a win anything. Not DACA, not immigration. I think it’s all about preserving the Obama presidency, for whatever reason, don’t even ask me why. Easy answer is, first African-American president. We know that Roberts made his health care bill constitutional when it wasn’t. So I don’t know if that still holds over.

I think, actually, what it is is there’s just a total hatred for Trump among the elites and glitterati in Washington, D.C. And the objective there is to deny Trump a victory on anything. And particularly now with the judicial branch exercising it’s own form of supremacy over the other two branches. And they’re letting them do it. There’s no pushback against the judicial branch.

In one of the last speeches he gave before he passed away, Justice Antonin Scalia said this. “Do you think the American people would ever have ratified the Constitution if they had been told the meaning of this document shall be whatever a majority of the Supreme Court says it is?” His point was it would have never been ratified and that that wasn’t ratified. The Supreme Court was not established as the final authority on what the meaning of the Constitution is. The Supreme Court has assumed that role for itself in a case called Marbury v. Madison.

The Supreme Court in that era determined they’re gonna decide what’s constitutional or not. And over the years, Congress has happily let it happen ’cause it takes a bunch of heavy lifting away from them. And so the left then said, “Okay. That’s the way it’s gonna be. We’re gonna populate the judiciary with as many Democrat judges as we can. We’re gonna put people out there that are gonna write the law from the bench, interpret the law the way we want it.” And that’s what they’ve done.

Anyway, a brief break. We’ll come back, get started on some phones, and then I want to share with you a couple of really good excerpts from the piece today by Daniel Horowitz at Conservative Review.

BREAK TRANSCRIPT

RUSH: Daniel Horowitz, Conservative Review. Headline: “Time for Trump and Conservatives to Crush Judicial Supremacy: Here’s How.” Now, I’ve been referring to this piece since the beginning of the program.

And Mr. Horowitz here is an expert on the whole subject of conservative jurisprudence, conservative legal projects, how to come up with the best judges, how to nominate them, how to get them confirmed. And he says that what we’ve seen in the past four years should tell everybody that it isn’t about finding the best judges ’cause we can’t. In fact, grab sound bite number 3.

This will be a great setup for this. Audio sound bite number 3, Chris Wallace. And, by the way, Chris, congrats on your book. Chris Wallace’s book about the decision to drop the bomb is number 1 in hardcover on the New York Times list. But he was on America’s Newsroom this morning, talking about the Supreme Court and the balance of the court. He didn’t get a question… I guess he did. I don’t know who asked.

Anyway, here’s the point that he was making…

WALLACE: Republicans have not been as good… I don’t know what it is, but they haven’t been as good at putting people on the court who will follow their views as Democrats are. Democratic presidents put people on the court, and they tend to stick to liberal judicial philosophy. The argument that’s made by some conservatives is these justices are conservative.

They get to Washington, they go to dinner and cocktail parties with a lot of liberals, and they start breathing the air and drinking the water here. Whatever the reason is that you do see Republican-appointed justices moving to the center and even sometimes to the left, you don’t see it Democrat-appointed justices.

RUSH: Well, isn’t that fascinating? He doesn’t understand it. He is admitting he doesn’t understand. Why do the liberal judges never wander off the reservation? And he says he chalks it up to the fact that they stick to the liberal judicial philosophy. Yeah. Exactly! Why is that? What is that? The liberal judicial philosophy is there’s only one decision in every case, and it is the preferred liberal decision.

And you shall not ever abandon whatever it is. In other words, these are not judges! These are liberal activists who work as judges. They wear the robes of judges, but they are not judges. They are not judging the law. They are there to implement the liberal agenda. Conservatives don’t see it that way. They don’t see that they’re there to implement a conservative agenda.

They’re there to judge the law — and conservatives think that they are really, really great when they decide cases against themselves because that proves their fairness, and that proves their open-mindedness. The liberal judge doesn’t give a rat’s rear end what anybody thinks of him, and he certainly doesn’t care whether you think he’s fair or not.

He is there to decide the liberal answer on every case. The liberal decision, the preferred liberal outcome is the only reason. That is what liberal judicial philosophy is, and so Mr. Horowitz says this is a no-win situation. It simply isn’t possible to appoint the right judges. Gorsuch was said to be the epitome, and after him, Kavanaugh — and before them, Roberts was said to be.

They have all, at one point or another, strayed for whatever reason.

We can all come up with our wild guesses as to why.

But it is true that when any conservative decides to vote against himself, his party, his movement — be it a legislator, a judge, or whatever — (impression) “There’s an open-minded guy! We might want to do a Washington Post Style section profile of you.” So Mr. Horowitz believes that it is abject mistake to even think about winning this battle by finding the right judges.

It simply isn’t possible because that’s not the playing field. Antonin Scalia, remember, in one of the last speeches he gave before he died, do you think the American people would ever have ratified the Constitution if they had been told that the meaning of the Constitution is whatever a majority of the Supreme Court says it is? That wasn’t the deal. That’s not in the Constitution. The Supreme Court does not have that authority. They gave it to themselves, legislative branch let ’em have it.

“The question for Trump and conservatives headed forward is where to go from here, now that so many have realized … that the minute you agree to the premise of judicial supremacism – that the courts stand above the other branches in deciding fundamentally political questions – no amount of ‘appointing better judges’ will rectify,” the situation. “The solution is to uproot the concept of judicial supremacism altogether.”

Now, what that means in this in this case, the Supreme Court has assigned itself the singular authority to determine what is legal and illegal, what is constitutional and unconstitutional. And all of America has sat by and let it happen. Every June we wait with bated breath to find out what nine people — well, we know what four of them, the four liberals we never doubt what they’re gonna say, they’re gonna come down on the liberal side of every damn thing, so we wait to find out what the five, in this case conservative judges, are gonna do.

And when we fall for the trick, because if the court goes our way, there we go, law of the land, never intended this way. So the judicial branch has supremacy. It’s gotten to the point Congress don’t even write law anymore. They do budgets and stuff, but even that’s broken. The budget process is broken. You got a bunch of continuing resolutions, not an annual budget every year. Plus it’s been blown to smithereens by the lockdown, the shutdown and coronavirus.

So the legislative branches, they don’t write law, and if they do pass legislation, it’s gonna depend whether the Supreme Court approves it years down the line. And we’ve just sat by and accepted this evolution of the power of the court because in a way it’s easy. How in a country of 320 million people are you gonna get the God answer? And everybody wants the God answer. On issues of controversy, culturally, politically, we want the God answer. What would God say? God is the ultimate authority. If God could speak to us, if God did speak to us, if God had the ability to tell us is abortion good or bad, then that would decide it once and for all.

Well, the Supreme Court has assumed the role of the God voice, and everybody’s accepted it. Well, not everybody’s accepted it, but we’ve accepted that this is the process. And it’s absurd. It’s absurd in a country this large, this diverse, that nine people who never even wrote the original legislation being discussed, being debated, being argued, being decided, get to determine it. They’re not elected, either. They’re appointed for life. They are not elected.

The really frustrating thing is that members of the House and Senate over the years have happily, happily let this power of theirs be usurped because it takes away all controversy. It takes away negative political ads. It takes away from opponents of incumbents the right to say the incumbent made a bad decision, stupid, because they’re not doing anything. They even appoint blue ribbon commissions to handle tough decisions when budget cuts have to happen.

So Mr. Horowitz writes, “So Trump should defy the court?” Is that what you’re saying? “No. The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts ‘must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.’ Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it’s following the law being defied by the judiciary. You see, this case is different from almost every case that comes before the courts.”

This is the DACA case. He says, “The president has no choice. This is not just about amnesty.” Don’t be fooled and think the DACA kids, the DACA case is about amnesty. “This is about everything he has done during his presidency.” Everything he has done, the judiciary, somewhere, has come along and said, no, you can’t, “Whether it’s numerous other immigration policies, the census, or environmental and energy regulations, the courts are mandating a continuation of Obama’s presidency. They are saying that Trump cannot get rid of anything Obama did unilaterally.”

Even if Obama made it happen unilaterally, Trump cannot do the same thing to get rid of it. So “unless Trump and Republicans promise to do as Lincoln did and push back against this judicial supremacism, there’s no purpose,” to finding better judges, there’s no reason for it ’cause that’s not the way to fix what’s broken here. There’s no number of correct judges that are gonna fix this.

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