The Elections and the Court

Bill Murchison
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Posted: Dec 14, 2011 12:01 AM
A respectable school of political thought holds that most of the political nastiness on constant view today can be traced back to the liberal and Democratic vilification of Robert H. Bork's nomination to the U. S. Supreme Court, a quarter of a century ago. By the time Ted Kennedy and his associates were through with Bork, he seemed fitter for the gallows than for the country's highest bench. This was ridiculous. If Bork had been confirmed, he would have brought to the court great excellences of character, scholarship and fairness.

In any case, the point here isn't to re-open the Bork case. It's to focus on why U. S. Supreme Court nominations are political battlegrounds. To wit, because the court runs the country whenever it decides to.

On Monday, the justices announced they would consider the new Arizona statute. The statue is viewed as restricting illegal immigration by forthright means, including the arrest, during traffic stops or wherever, of illegal aliens. Just a couple of weeks earlier, the court said it would decide challenges to the 2010 health care act having to do with, conspicuously, Congress' right to compel the purchase of health insurance. Nowadays, loftier than these perches of judgment, you simply don't go. Five justices intend to figure out all of this and tell us what to do. Your honor, counsel for the defense pleads that not only have we gotten off the constitutional track, but we're wandering further and further from it.

Politicians and interest groups fight over Supreme Court nominations because they know, given the court's eccentricities, how fearful the power of five or more justices is. Justices cram down the nation's throat a view of the Constitution that is controversial at best, subversive of liberty at worst. It matters who ends up on the court. That is why we fight over the seats on it. Nor will the hostilities soon subside.

The view of the Constitution the Supreme Court will adjudicate in the immigration and health care cases is that on great matters of policy, Congress wins and the states and the people (as the 10th Amendment phrases it) knuckle under. Congress, on this showing, can order the purchase of health insurance on the grounds that the great unspecific collectivity of "we" needs to have such insurance. On immigration, Congress -- by this same showing -- can decide the people's power to participate in the choice of their neighbors and the conditions under which those neighbors may come and go.

The questions at stake are subtle. The Constitution is indeed "the supreme law of the land," but the American system of government presupposes balance in our understanding of that postulate. The Arizona case is instructive. On account of the porosity of the Arizona border, the legislature gave law enforcement officials power to determine whether the people they arrest are illegally in the country. The law also bans illegal aliens from voting. The question isn't: Should Arizona do such things? The question is: Hasn't Arizona at least the power to try to do such things? If it lacks such power, what meaningful power has it as a state of the union? Does it wait for the federal government's permission to perform all but the most basic forms of government, such as paving the highways?

Frankly, therefore it matters which party wins the White House. The Democratic philosophy of government broadly holds that the federal government can do as much as it pleases. Judges who, broadly speaking, hold this view get appointed to the court by Democratic presidents. Republican presidents generally appoint to the bench candidates skeptical of giving the national government too much power. Robert Bork was feared by Ted Kennedy as a leader in checking government power, so he peddled an anti-Bork bill of goods to the effect that "in Robert Bork's America" justice and civil rights would approach extinction.

On goes the electoral war for the philosophical soul of the American people. The Supreme Court's current line-up of cases reminds us how much control of the court matters both to conservatives and liberals. Can't we -- or the media -- stop pretending all justices are alike? They aren't.