Bill Murchison
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.

Bill Murchison

Bill Murchison is the former senior columns writer for The Dallas Morning News and author of There's More to Life Than Politics.
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