Has politics infected the actions of our judicial system?

May 27, 2025

Hardly anyone disagrees with the statement that America has some serious problems. One of the most serious of those problems is what is happening in our judicial system. Mis-interpretation of our Constitution and our laws is not new, but is a problem.

A prominent interpretation issue has to do with birthright citizenship. In January, shortly after being sworn into office, President Donald Trump signed several executive orders. One of them sought to end birthright citizenship for children born in the U.S. to parents who are not U.S. citizens or lawful permanent residents. 

The liberal left, which supports illegal immigration, immediately reacted. They think that according to the 14th Amendment to the U.S. Constitution, if an illegal alien woman with child sneaks across the border on a Thursday and gives birth to that child on Friday, that child is automatically a citizen of the United States of America. 

Section 1 of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Upon first reading, and without thoughtful analysis, this would tend to suggest that anyone born in the U.S. is immediately a citizen, no questions asked. But with thoughtful analysis, and/or an understanding of why the 14th Amendment was ultimately passed by Congress, that interpretation falls on its face.

The liberal’s interpretation ignores both the actual language, and the actual purpose of the Amendment. Properly interpreting the Constitution’s language, and the language of laws passed by Congress, is not just relevant, but essential. And, applying the factors that were responsible for that piece of the Constitution, one of its Amendments, or a particular law — the original intent — is critical. 

Just because many years or decades have passed, and thinking may have changed since the enactment of the item in question does not mean that those factors should be or can be ignored.

A useful analysis of this comes from the Heritage Foundation, via Amy Swearer, Senior Legal Fellow, Meese Center, and Hans von Spakovsky, Election Law Reform Initiative Manager and Senior Legal Fellow.

“For the first century following the 14th Amendment’s ratification, few legal scholars would have batted an eye at a directive like Trump’s. If anything, they’d have been more confused as to why the federal government started issuing passports to the U.S.-born children of illegal aliens, tourists, and ‘temporary sojourners’ in the first place.  

“Contrary to popular belief, the 14th Amendment doesn’t say that all people born in the U.S. are citizens. It says that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof’ are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of ‘universal’ birthright citizenship. 

“This was intended to constitutionalize the protections of the 1866 Civil Rights Act, which provided that ‘all persons born in the United States, and not subject to any foreign power’ would be considered citizens.   

“That’s because the sponsors of the 14th Amendment made it clear that ‘subject to the jurisdiction’ of the U.S. means owing your political allegiance to the U.S., and not to another country. Children born to aliens are citizens of their parents’ native land, and thus owe their allegiance to, and are subject to the jurisdiction of, that native land.”

Another example of problematic judicial action is provided by an article in The Western Journal. This challenges that the idea that a federal district judge in one of the hundreds of districts can routinely issue a ruling that affects the entire country, including the actions of its president and the co-equal administrative branch.

“Trump U.S. Solicitor General John Sauer argued when being questioned by [Supreme Court] Justice Brett Kavanaugh on Thursday that the phenomenon of district court judges issuing nationwide injunctions is relatively new in the nation’s history, becoming prominent in the last four or five administrations.

“Further, they have been meted out in unprecedented numbers against Trump, with 40 in the last four months, he said.

“Sauer directed Kavanaugh to the New Deal under President Franklin D. Roosevelt as a reference point. ‘There were very, very passionate challenges to nationwide policies during the Roosevelt administration, and they were not addressed by issuing universal injunctions,’ the solicitor general highlighted.

“Sauer also addressed the Supreme Court’s past rulings on whether lower courts can issue nationwide injunctions.

“So, when the [Supreme Court] has considered and addressed this, it has consistently said, ‘You have to limit the remedy to the plaintiffs appearing in court,’’ Sauer argued.

“Then [Justice Clarence] Thomas made the most important observation of the day by asking, ‘So, we survived until the 1960s without universal injunctions?’”

“That’s exactly correct. And in fact, those were very limited, very rare, even in the 1960s,” Sauer responded. “It really exploded in 2007.”

So, we are now experiencing a pandemic of improper judicial rulings, it seems. Are these the result of persons appointed to positions of federal judgeships who really do not understand the law and the necessity of judicial neutrality and boundaries? Or, are they more concerned with political goals than with being judicially neutral referees in these cases?

Many Americans do not understand the purpose of the Supreme Court

July 9, 2024

In the recently ended term of the U.S. Supreme Court, the Court rendered some decisions that have a lot of people upset. They believe that their political/ideological perspective should be the way of life for all. And when the Court’s rulings do not follow that line of thinking, the Court has made a terrible and unforgiveable mistake.

The reaction of some of these people is that one or more of the justices should be impeached, and/or the Court must be packed with additional justices who hold political/ideological beliefs that align with theirs, and will rule accordingly, resulting in politically satisfying decisions.

This position is far removed from the original intent and purpose of the Court. The Supreme Court is the final arbiter of the law. Its job is to ensure the promise of equal justice under the law and it also functions as guardian and interpreter of the U.S. Constitution.

Here is information from Justia online regarding the function of the Supreme Court: “Article III of the U.S. Constitution outlines the scope of judicial power. Under Section 2, the Supreme Court and the lower federal courts may hear cases arising under the Constitution, federal laws, and treaties made under their authority, among other matters. 

“With a few exceptions, the Supreme Court is limited to appellate jurisdiction, reviewing cases previously heard by other courts. Federal courts may hear only actual, ongoing cases or controversies, which means that someone bringing a claim must have ‘standing’ to sue. In general, they must have suffered a concrete injury for which a court can provide an effective remedy.

“One of the most important and frequently exercised powers of federal courts does not appear in the text of Article III. This is the power of judicial review. Barely a decade into its history, the Supreme Court asserted in Marbury v. Madison that it holds the power to determine whether a legislative or executive action is constitutional. Many of the most famous Supreme Court decisions have relied implicitly on the notion that the Court is the ultimate interpreter of the founding document.

“On the other hand, the Court has developed a doctrine of judicial restraint in the area of ‘political questions.’ The six factors outlined in Baker v. Carr largely define this doctrine, which is based on the idea that courts should remain aloof from politics. Thus, a federal court should decline to hear a case that presents an issue heavily laden with political implications.”

Now, those who disagree with the Court’s recent decision on presidential immunity, and other similarly unpopular decisions, will claim that the immunity issue is rife with political implications. But the important factor is that the decision protects the actions of presidents of any and all political persuasions, not one in particular. These days, nearly everything has political implications, but that was not the issue of the immunity decision. It was a question of Constitutional intent regarding the actions of presidents while in office.

The judicial branch, of which the U.S. Supreme Court is a part, is the only one of the three branches of our government in which no one is elected. The president and vice president in the executive branch are elected, and the members of the two houses of the Congress are elected in the legislative branch.

Those seeking one of those positions run for president/vice president, the Senate or the House of Representatives on a platform of things they support and oppose. But future federal judges and justices do not campaign for, or run for a seat on a court, let alone have a platform of things they support and oppose that they will exercise if selected for a seat. Judges and justices are expected to be politically and ideologically neutral. The law is supposed to be applied without prejudice or preference.

Those chosen for a seat in a federal court are there not to please Republicans, Democrats, or any group. They are there to interpret the Constitution and laws of the nation as they were written and intended to be understood without political bias or interest.

Imagine if the Democrats were somehow able to gain total control of the government. How would the non-Democrats feel about their country, if they were forced to live under the dictates of the Democrats, many of whose rules they would strongly dislike, and which might have serious negative effects on them? 

And then, what if in a few years the Republicans somehow managed to take control, and force their ideas on the country. How would the non-Republicans like that?

That is the reason the federal court system, and indeed, all of our courts, must be politically neutral and maintain America’s pledge and history of being the one place on the planet that guarantees its people fairness and the greatest amount of personal freedom in the history of mankind.

And each of us must take a deep breath whenever the Supreme Court, or any court, makes a ruling with which we disagree, and move on. And if a change is desired, we must make those changes through the proper processes, and not through brute force. 

Having a “living” Constitution is having no Constitution

One of the serious challenges to America’s future is the tendency to interpret the U.S. Constitution and our laws liberally. That is, to understand something written years, decades or centuries ago using the current fluid understanding of how things “ought to be.” 

This concept of a “living” Constitution completely discards the reasoning that occurred when the document was created, and substitutes today’s “preferences” for the principles as understood, intended and written.

Strict interpretation of the language of the Constitution, interpreted through knowledge of how things were during the creation of the document and how the Founders thought, is essential to the nation keeping the magnificent principles with which it was designed. This is known as “originalism,” or maintaining the original intent of the Constitution and laws.

A good example of why that is important is in the meaning of the Second Amendment to the U.S. Constitution, which reads: “A well-regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

There are two elements under debate, the first being the meaning of the term “militia.” Today, the term often applies to formal military organizations similar to the National Guard. Thus, the anti-Second Amendment folks suggest that only such organizations are guaranteed the right to keep and bear arms. But when the Constitution was being written, the militia consisted of private citizens who could be called together to act in defense against an attack. It was not the army, nor even a formal organization. 

The other issue is that the anti-Second Amendment folks say it does not give anyone the right to own any weapon they want. People often say that the Founders had no way to imagine the existence of so-called “assault weapons.” And that is true. However, the Amendment guarantees the right to keep and bear arms. There are two different concepts: Keeping arms means to own and have arms, while bearing arms means they may be carried by the people.

It also does not distinguish between the types of arms people may keep and bear. There were knives and swords, etc., and there were hand-held muskets, long rifles, and cannons. The 2nd Amendment doesn’t say to keep and bear muskets and swords, it says to keep and bear arms, meaning whatever arms were available. People were not prohibited from owning a cannon if they chose, to drag it along behind them or tie it to their horse if they wanted. Muskets, long rifles and cannons were the “assault weapons” of their time, and they were precisely what the Amendment guaranteed the right to keep and to bear.

They also try to persuade us that the purpose was to guarantee the right to keep and bear arms for hunting and home defense, but the main threat generating this right was the potential for a threat from an armed enemy, foreign or domestic.

The idea of a “living Constitution” essentially renders the Constitution to mean what a majority of the U.S. Supreme Court Justices says it means at any given time. Today, it may mean something, and next year it may mean something else. That, of course, means the Constitution means nothing, if what it means is subject to the aspirations of a few people at any given time.

The Founders were smart guys. They had seen various types of government be tried, and fall short. Sometimes falling very short. So, they devised a different idea. And the document designed to govern this nation was comprised of broad principles, one of which was great personal freedom, which would last in perpetuity.

Those principles may not be changed on a whim, or because one or more people in a position of power decides to change one or more of the principles.

Thus, if sufficient reasoning and support for changing some portion of the Constitution exists, there is a process for doing that, and that process involves much more than the personal opinions of jurists. The Constitution may be amended, but through a rigorous process.

The National Archives describes this process: “The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention.”

This process was designed to be a difficult one, in order to prevent quirky, impulsive changes to suit some circumstance, which may be fleeting, and change after a time. It was designed to prevent what too many justices of the United States Supreme Court and judges like to do: make law and change the Constitution from the bench.

Under this process, the Constitution will remain what it was designed to be: a standard for the nation that does not change with the tide or the direction and speed of the wind, unless there is a good reason for it and a substantial amount of support for it.

Biden’s reasoning for who to appoint to the Supreme Court is flawed

So, President Joe Biden gets to pick a nominee to the U.S. Supreme Court. Back on the campaign trail he pledged to choose a black woman for the position. Why? Because, he said, it’s time.

If there is any good news in this situation, it is that with 99.9 percent certainty his selection, if approved, will not affect the balance on the Court. 

Replacing Justice Stephen Breyer, one of the three liberals on the Court, will almost certainly result in the nomination of a liberal/progressive, keeping the activist — “make law from the bench” — number at three, against six who usually follow the strict constructionist or original intent philosophy when interpreting the U.S. Constitution and laws.

America was once a nation where one earned his or her place on a court bench, in a hall of fame, or at the top of a rating or activity through merit. We are now, more and more, selecting people based not upon their abilities and accomplishments, but on their race or gender. This system is referred to as “equity.” It is more about evening out numbers than seeking out the best.

And there is the possibility that the person Biden nominates may feel that she got the nod only because of her race and gender, not because of her positive attributes.

If we are going to start picking justices for the Court based upon these new criteria, when will the time be for a Hispanic male, an Asian man or woman, or a transgender person? And who will decide when the time is right?

Many or most times — and filling this Supreme Court vacancy is one of those times — the proper choice is the most qualified person. That may well be a black woman. But it might be someone else.  And, if no others are even considered, how can we the people be sure that we are going to have the best possible person nominated for this crucial position?

Every Justice on the Court should be someone trained in the law, who understands and is devoted to the task of upholding the principles of the U.S. Constitution and the laws of the land as written and intended. There are already three on the Court who try to make law from the bench.

The nominee should be someone who has held a judgeship long enough to be familiar with the job, and without regard to their race, gender, political preferences, or the wishes of the woke.

Hopefully, Biden will nominate a black woman with abilities and qualifications equal to Clarence Thomas — who is a black man and one of the greatest Justices of any color, ever — and others seated on the Court.

From SCOTUSblog.com, which has covered the U.S. Supreme Court since 2002, here is some information on potential nominees: “Two potential nominees therefore stand apart from all others: Leondra Kruger, a justice on the California Supreme Court, and Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit.”

“Both are well known to the White House team that will lead the nomination process,” the blog continues. “Kruger is a former Department of Justice attorney. Biden recently appointed Jackson to the court of appeals.”

The report goes on to say that “The president’s bottom-line calculus may reduce to the following. Jackson was recently confirmed by the Senate, making a Supreme Court confirmation process likely to go smoothly. Kruger has never faced Senate confirmation.”

That distinction matters, because if Democrats lose control of the Senate later this year, that would be important if hearings on the president’s nominee were substantially delayed until after the election, or if the first nominee is rejected. A candidate that has cleared the Senate previously would likely speed the process.

Several other names have also been mentioned for the position.

And exactly when did Biden catch the fever for choosing justices based upon the race and/or gender?

His disapproval and opposition to current Justice Thomas in his 1991 nomination hearing gathered headlines. As the then-Senate Judiciary Committee Chair, Biden actually tried to discredit Thomas as a crazy libertarian and reckless judicial activist.

“I assure you I have read all of your speeches, and I have read them in their entirety,” Biden said after Thomas’ opening statement. “And, in the speech you gave in 1987 to the Pacific Research Institute, you said, and I quote, ‘I find attractive the arguments of scholars such as Stephen Macedo who defend an activist Supreme Court that would’ — not could, would — 'strike down laws restricting property rights.’”

Thomas responded by denying what Biden accused him of, but Biden didn't buy it. “Quite frankly, Biden said, “I find it hard to square your speeches with what you are telling me today.”

So, while opposing a well-qualified black man 40 years ago, who despite Biden’s opposition was confirmed, he now believes a black woman should be the next associate justice because “it is time.” 

Time will tell whether Biden intends to nominate the next potential justice for the best reasons, as polls show Americans want. But given his support for the radical left’s agenda, we should not hold our breath.