One of Governor Ron DeSantis’s most admirable initiatives as Florida governor has been to lead the movement protecting kids from people and entities sexually grooming and medically mutilating them. Having lost at the legislature, leftists promptly fled to the federal court system. And sure enough, Robert Hinkle, a Clinton appointee in the U.S. District Court for the Northern District of Florida, answered the leftist call and blocked portions of the law against medically mutilating children. His judicial overreach reminds us that an eventual Republican-led government must rein in the federal judiciary.
Briefly, Florida passed a law protecting children from so-called “gender-affirming care” achieved via toxic chemicals (sterilization, fragile bones, cancer, heart disease) and monstrous surgery. (For the latter, a very NSFW image explains what I mean.) Judge Hinkle promptly ruled as a finding of fact that “gender identity is real” and said that these “treatments” for children were too important to ban.
Aside from the fact that Hinkle is morally and intellectually deficient, I want to focus on how we’ve allowed federal judges to override the people’s will on public policy issues that should reside in the people, not unelected judges. (State judges, by contrast, are usually elected and answerable to the citizens.)
History matters here, but I’ll try to be brief. The Constitution, in Article III, Sec. 2, was vague about the federal judiciary’s powers, holding that they extended “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….” George Mason immediately pointed out that the language has no “limitation whatsoever, with respect to the nature or jurisdiction of [the federal] court.” James Madison, who liked the language, explained that “the judicial power [of the national government] should correspond with the legislative.”
Image: Supreme Court (edited) by Philosophicalswag. CC BY-SA 3.0.
Although the language may be broad, it’s worthwhile remembering the generally limited nature of the judiciary in the late 18th and early 19th centuries. It was not concerned with questions going to the heart of societal values.
Back then, social questions went to houses of worship and the legislature (or Parliament), and even to juries. Judges were limited to trying things such as criminal cases, business and financial disputes, probate cases, torts, contract disputes, maritime problems, and defamation cases. Indeed, in England, if a public policy case was before the Court, the judge left it to the jury to decide the ultimate outcome, although he would explain to the jury the ramifications of their decision. (See, e.g., the John Wilkes case in 1763, which greatly affected Colonial America.)
Now that judicial activists have gotten their claws into the system, though, the Supreme Court has taken upon itself the sole authority to determine issues that aren’t constitutional at all but, instead, represent the values of the American people, something previously reserved to Congress. As the Supreme Court has decided more and more public policy issues, we find ourselves in a dangerous kritocracy, i.e., a tyranny of unelected judges.
Every one of the Supreme Court’s activist decisions has had profoundly deleterious effects on society. Roe v. Wade caused the most obvious damage because it has taken over as the single most dispositive issue in any election, no matter the other issues at stake. However, all the Supreme Court cases regarding policies connected to race, education, homosexuality, employment, unions, etc., have also riven society because they’ve overridden the people’s voices.
Now, in 2023, the Supreme Court has made a mockery of representative democracy. Moreover, the lower courts, which claim much of the same make-it-up-as-you-go-along power as the Supreme Court, are doing the same…which is how you get a federal judge who announces, contrary to the will of Floridians, that “gender identity is real” (a highly contested claim, scientifically, socially, and morally) and then proceeds to void duly passed legislation.
It's time for Congress to act to claw back from the federal judiciary its outsized voice on questions of public policy.