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New book by federal judge from Utah explains history behind gay marriage and other major U.S. Supreme Court rulings

(Courtesy Shadow Mountain Publishing) U.S. District Judge Ted Stewart

In 1896, the U.S. Supreme Court upheld a Louisiana law that required separate but equal railroad cars for whites and black — a decision that explains, in part, why the nation remains racially divided today.

A 1905 ruling by the high court in a dispute over bakers’ working hours in New York was the genesis of abortion rights and same-sex marriage decisions decades later.

And the 1942 case of an Ohio farmer who defied the secretary of agriculture by planting 12 acres of wheat opened the floodgates of federal regulation of commerce.

U.S. District Judge Ted Stewart, who is based in Salt Lake City, makes these connections in “Supreme Power: 7 Pivotal Supreme Court Decisions That Had a Major Impact on America.”

The book, published by Shadow Mountain Publishing, was officially released on Tuesday. The forward is written by U.S. Rep. Chris Stewart, R-Utah, the judge’s brother.

Supreme Power by federal Judge Ted Stewart

Ted Stewart will sign “Supreme Power” — which is written for lawyers and laymen — from 4 p.m. to 5:30 p.m. Saturday, Sept. 30 at Deseret Book, 45 W. South Temple, in Salt Lake City.

The book examines how the Supreme Court became so powerful and describes how the seven decisions shaped the nation, as Stewart wrote, “for good or bad, depending on one’s perspective.”

Stewart said the cases seemed to have a narrow scope but they expanded the interpretation of law.

In the 1905 case, the justices overturned a law limiting the hours bakers could be required to work, saying the general right to make a contract with an employer concerning working hours was part of “the liberty of the individual” that was protected by the U.S. Constitution’s due process clause. The court, thereby, deemed itself the final voice as to what “liberty” means, Stewart said in the book.

Years later, he wrote, the court used this precedent in finding a right to privacy that made abortion, as well as same-sex marriage, legal.

Stewart noted that presidents and members of Congress come and go and laws can be passed and undone but decisions stay until the court reverses itself.

“Supreme Court decisions have a longevity that is unique in our system,” Stewart said in an interview, adding that he hopes the book will help readers understand why the judicial philosophy of court nominees is so important.

Stewart said he was inspired to write the book by Justice Antonin Scalia’s dissent in Obergefell v. Hodges, a 5-4 decision handed down in 2015 that said same-sex couples have the fundamental right to marry.

Scalia, who thought the public debate on same-sex marriage should continue, wrote that “it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. ... A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Stewart said in his book that while many in the nation are content with the current state of affairs, others believe the Supreme Court’s increased power can come only at the loss of freedom to the people.

“To those, I encourage an escalation in their political education, involvement, and activism,” he wrote. “Among other efforts, they must demand that only Justices who will show complete fidelity to the Constitution of the United States be nominated by our President and confirmed the Senate.”

In a written comment on the book provided by the publisher, former Utah Rep. Jason Chaffetz said the balance of power has tilted much too far toward the judicial branch.

“Federal judges, and particularly justices of the Supreme Court, have taken power that our Founding Fathers never intended for them to have,” Chaffetz said.

Utah State University political science professor Anthony Peacock said the book provides a “profound awakening.”

“Stewart reveals the extent to which the Court, and often a mere five members of the Court, have usurped the people’s right to self-government … and transformed what was to be the least dangerous branch of the federal government into what might constitute the most ominous threat to American liberties today,” Peacock said.

Stewart graduated from the University of Utah’s law school and was admitted to the state bar in 1975. He is a former executive director of the the Utah Department of Natural Resources and the Utah Department of Commerce. He also served as chief of staff to Utah Gov. Mike Leavitt.

President Bill Clinton appointed Stewart to the federal bench in 1999. Ted and Chris Stewart were the co-authors of “The Miracle of Freedom: 7 Tipping Points That Saved the World” and “Seven Miracles That Saved America: Why They Matter and Why We Should Have Hope.” In addition, Ted Stewart is the author of “Mark of a Giant: 7 People Who Changed the World.”

As a federal judge, Stewart’s high-profile cases have included a lawsuit over ownership of The Salt Lake Tribune; a dispute over whether Energy Solutions could import foreign waste for disposal in Utah; a challenge to a state law banning panhandling near roads; and the prosecution of members of the polygamous Fundamentalist Church of Jesus Christ of Latter-Day Saints on fraud and money laundering charges stemming from alleged misuse of the Supplemental Nutrition Assistance Program.

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