ERICK ERICKSON: His Majesty Anthony Kennedy
Whenever I write about American democracy, I inevitably get angry letters from people who yell at me that we are a republic, not a democracy. Yes, this is true, but a republic can take numerous forms, and the simplest definition of a republic is that it is not a monarchy. A republic is any country where the people consent to be governed.
The debate between whether we are a democracy or republic really boils down to the language differences between the western and eastern Roman Empire. The east had democracy as its ideal, and the west had a republic. But in practice, they were the same, and also a long ago pipe dream supplanted by emperors. In theory, the people cast votes and could decide the matters of great morality through the slowly evolving democratic or republican process. But the emperor overrode that all with his will.
Thus we come to the United States, where many on the left fret over the supposed Imperial Presidency and fear conservatives are setting Donald Trump up as a king in all but name. I am old enough to remember my conservative friends were convinced Bill Clinton would not actually vacate the White House for George W. Bush. My liberal friends were convinced George W. Bush would not surrender the White House for Barack Obama. Conservatives fretted the same about Obama, and some are now convinced Michelle Obama will run for president to establish the Obama dynasty.
Everyone is so focused on the presidency that they have ignored a basic truth about our American republic. We are no longer a republic, nor are we a democracy. We are, instead, an oligarchy beholden to five black-robed masters who are presided over by His Majesty Anthony Kennedy. Not only have we given our black-robed masters a guaranteed income, but we have also given them jobs for life. People forget that the constitution requires guaranteed income to members of the Supreme Court. In fact, when the income tax was expanded in the 20th century, the Supreme Court ruled that taxing judges was unconstitutional. A subsequent Court reversed that ruling after threats from Congress.
Now, however, Congress does not threaten the Court. Instead, our politicians pass problems off to the federal courts. The federal courts have become super politicians who are unelected and know Congress will do nothing to stop them. Both sides should be terribly concerned about this, but because most of the judges turn reliably liberal over time, the left in America has increasingly offloaded their problems to the courts.
A great current example is partisan gerrymandering. In law school, students learn about the “political question” doctrine. Courts avoid dealing in questions that are political. There is no greater political question than the drawing of lines to elect the politicians, but the courts, like all the other political questions, have determined they can address this as well. Partisan gerrymandering was never a problem the left cared about as long as Democrats benefited from it, but now that Republicans benefit from it, it is suddenly an issue the courts must address. And no doubt four of our black-robed masters are supplicating themselves before Anthony Kennedy even now begging him to side with them.
Our culture war in this nation is far nastier than it ever should be because of Anthony Kennedy and his fellow black-robed oligarchs. Five of them decided their morality should overrule the morals of 320 million Americans on the issue of gay marriage, just as five of them did with abortion. Instead of letting Americans slowly move forward through a democratic process, judicial fiat has lurched us forward without time to consider related matters. The result is that every national fight now becomes more about control of a court and less about other matters.
The United States will only ever return to real federalism and real democracy when Anthony Kennedy and his accomplices exercise some humility in office. As that is unlikely, next time you hear a politician sing odes to our republic or democracy, remember it is all a lie. Nothing matters unless Anthony Kennedy says it does.