Republican Presidential candidate Mike Huckabee doubled down on his attacks on Constitutional norms that have been part of the American legal and political system for more than two centuries during an appearance this past weekend on Fox News Sunday with host Chris Wallace:
The two had several spirited exchanges over such issues as entitlement reform and taxes. One of the most animated was on the role of the courts.
Wallace told Huckabee that in his announcement speech, “You also seemed to indicate that as president, you wouldn’t necessarily obey court rulings, even the Supreme Court.”
Said Huckabee: “Many of our politicians have surrendered to the false god of judicial supremacy, which would allow black-robed and unelected judges the power to make law as well as enforce it.” Like many conservatives, he has expressed alarm at the court’s role in striking down state laws banning same-sex marriage. The country is awaiting a ruling from the Supreme Court on whether such unions are protected by the Constitution.
“The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government,” Huckabee said. “Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.”
Wallace pressed on, asking what if former president Richard Nixon “had said, for instance, in Watergate, ‘I don’t want to turn over the tapes and the court can’t make me’ “?
Huckabee said that the president has to follow the law, but then he retorted with a question of his own: “Then, what if the Supreme Court ruled they were going to make the decision as to who was going to be the next president and save the taxpayers and voter from all the expense and trouble of voting, and they’ll Objust pick a president? Well, we would say, ‘Well, they can’t do that.’ Why can’t they do it? They can’t do it because it’s not in the law.”
This isn’t the first time that Huckabee has gone off this rant about the Supreme Court not being the final authority on the law, of course. He said much the same thing around the time he began his Presidential campaign at the beginning of the month in interviews with conservative talk show hosts Hugh Hewitt and Steve Deace and his fellow candidate Ben Carson has said much the same thing. Obviously, this rhetoric is all aimed at one thing, the impending Supreme Court decision in Obergfell v. Hodges and its companion cases dealing with the constitutionality of state law bans on same-sex marriage. In that respect then, rhetoric like this is intended mostly to pander to the socially conservative and evangelical voters that candidates like Huckabee are obviously trying to appeal to in states like Iowa. Those voters can read the writing on the wall just as much as the rest of us, and they see both the legal developments in the two years since the Court’s ruling in U.S. v. Windsor and the fact that polls are showing more and more public acceptance for same-sex marriage. They know that, in all likelihood, they will be on the losing end of the Court’s decision in June, and they look to people Huckabee to essentially lie to them and tell them that there’s a way to stop the train they seem coming through the tunnel. And that’s what Huckabee is providing them.
The fact that Huckabee is pandering, though, doesn’t mean that what he’s saying doesn’t carry a danger that needs to be rebutted. To a significant degree, his comments and his assertion that the Supreme Court is not the final arbiter of the law, a position that is remarkably similar to that taken by the opponents of desegregation during the Civil Rights Era, mirrors rhetoric that has been prevalent on the right over the past several years. As the tide has turned in the battle over gay marriage, several conservatives have made the argument that there is something illegitimate about the idea of same-sex marriage being mandated by the courts rather than it being adopted through the democratic process. Of course, in addition to the myriad court victories on this issue, we’ve also seen same-sex marriage adopted via the legislative process in states such as New York and Illinois and via referendum in states like Maryland, Maine, Minnesota and Washington. Indeed, the last time a law banning same-sex marriage succeeded “democratically” was more than three years ago in North Carolina.
Even leaving those facts aside, though, the idea that there is something illegitimate about the fact that much of the progress on same-sex marriage has come through the courts only makes sense if you deny the very legitimacy of the courts themselves. While it’s true, for example, that the idea of judicial review that was established some 214 years ago in Marbury v. Madison was not explicitly set forth in the Constitution, the idea that the Supreme Court has the authority to declare a law unconstitutional is an inherent part of the authority granted to the Supreme Court in Article III of the Constitution, not to mention the inherent powers granted to courts in general under English Common Law. This authority extends naturally not just to laws passed by Congress, but also laws passed by the states to the extent that they conflict with the Constitution. Huckabee’s assertion, then, that the Supreme Court doesn’t have the authority that which it has been doing for the past two centuries is not only nonsensical pandering, it is also a rejection of the Constitution itself. Considering that he’s supposed to be running as a Republicans, and that Republicans like to at least pretend that they respect the Constitution, that’s rather ironic.
