Conservative talk radio host Rush Limbaugh made a legal observation on the air
yesterday that he — and many other lovers of freedom — have made
before, but I don’t think it can be stressed enough to all
Americans, regardless of political affiliation.
He said, essentially, that it does make a difference who we
elect to the highest offices in the land, if for no other reason than
because they have the ability to nominate and elect our federal judges.
Specifically, the anointed powers that be have the authority to select
our Supreme Court justices, those stalwart individuals who serve
lifetime appointments judging cases — ostensibly — on their
However — and this is key — the reason their selection is so
important is because, like all political animals, sometimes even Supreme
Court judges will ignore the Constitution in favor of ruling on behalf
of their own political beliefs. And every ruling instantly becomes the
law of the land, since there is no higher court of appeal.
The infamous 1973 Roe v. Wade decision, legalizing abortion
nationwide while summarily overturning state laws forbidding the
procedure, is probably the most famous example of High Court judicial
terrorism in recent times. The Court’s order to impose forced
desegregation and bussing on public schools a couple of decades ago is
another example of the power that resides in the hands of these nine
Having said that, Supreme Court decisions do not necessarily stand as
the final word on an issue. Congress — the sole lawmaking authority in
this country — has the “final word” on issues pertaining to
and issues governing the conduct of the High Court, but seldom evokes
these privileges to reverse Court rulings. So, in essence, the decisions
of the Chief Justices become final by default.
In particular Rush was alluding to a recent Court decision
allowing police officers the right to stop somebody just because they
ran away from officers when they saw them. Speaking
for the slim 5-4 majority, Chief Justice William Rehnquist wrote,
“Nervous, evasive behavior is a pertinent factor in determining
reasonable suspicion” to justify stopping someone. “Headlong flight —
wherever it occurs — is the consummate act of evasion.”
He also said, “Allowing officers confronted with such flight to stop
the fugitive and investigate further is quite consistent with the
individual’s right to go about his business or to stay put and remain
silent in the face of police questioning.” He also wrote, “A high crime
area (is) among the relevant contextual considerations.”
On its face, Rehnquist’s “logic” may appear to be sound, and I’ve no
doubt that it is sincere. The problem is, there is not one ounce of
constitutional authority in this decision.
First of all, the Constitution’s Fourth Amendment
prohibits such arbitrary decision-making on the part of law enforcement
officers. Americans have the right “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” Furthermore, the amendment states that the right “shall not
be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.”
Even if a cop has a reasonable “probable cause” to stop a
person who is running away from him, he still has no immediate proof
that the person is guilty of anything. The cop also has to have his
suspicious probable cause “supported by oath or affirmation” in the form
of a search or arrest warrant. And that warrant must specifically
describe “the place to be searched, and the persons or things to be
seized.” This is not rocket science.
So how does Rehnquist justify the Court’s majority opinion, based on
these solid and time-tested constitutional principles? Easy — he
can’t. And that is Rush’s point.
It doesn’t matter if Rehnquist is off-base constitutionally because
Rush, like many of us, is a pragmatic realist and like him we all know
that regardless of the constitutional standing of that decision, it
isn’t likely to be challenged by Congress. So there it will remain —
probably forever — and hence the importance of electing leaders who
would not appoint constitutional midgets to the Supreme Court in the
Yes, it is true that adding a number of constitutionally oriented
members of Congress would serve as a hedge against a legislating High
Court because such members, if in the majority, would immediately
challenge such decisions. To do that, however, we’re going to need a
lot more members in Congress that believe in this duty than we have
right now — or are likely to get anytime soon.
Since Congress rubber-stamps most judicial appointments made by the
president, having a president who respects the letter of the
Constitution is vital. The logic is simple and the theory is sound.
President Clinton (and the current Congress) is responsible for an
incredible number of liberal appointments to the federal bench. As it
stands it will already take years to undo the damage he has done, but
what we cannot abide is worsening this damage by electing somebody who
doesn’t respect the highest governing document in our country.