Brian and Garrett Fahy

It is a revealing, and perhaps sad, commentary on the state of the GOP nomination process that so little - if any - discussion has been spent on the proper role of the federal government's most powerful branch, the scope of its powers, and the identity of its future members. Of the presidency we are not speaking: rather, the institution that is immune from polls, public opinion, the Electoral College and the demands of the tea party – the Supreme Court.

Well known to students of federal separation of powers history is President Andrew Jackson’s famous and public rejection of the Supreme Court’s approval of the Bank of the United States as a constitutionally permissible enterprise. Less well known to the nation and the GOP primary electorate is where any of the GOP candidates stand on some of the most pressing legal issues likely to come before the Supreme Court. Regrettably, though not surprisingly, arguably the most powerful branch of government - though unintended by the Framers to be so - has received scant attention from those vying for the privilege to nominate the next Supreme Court justice.

The Supreme Court merits consideration at this early stage because of the Senate electoral picture, a vacancy likelihood, and the Court’s likely involvement in heated policy issues.

First: the Senate. Though charged with the limited role of “advising and consenting” on judicial nominations, the Senate has become the gatekeeper to the promised land of lifetime judicial tenure. And control over the gates is up for grabs next fall. Democrats will be defending twenty-three Senate seats next fall, Republicans ten, and Republicans need only four seats for a Senate majority and control over the Supreme Court nomination process. Democratic seats in Montana, Nebraska, Missouri, Florida, Virginia, and North Dakota are at the top of the GOP target list, and RealClearPolitics lists North Dakota and Nebraska as likely to enter the GOP column. Further, according to the Cook Political Report, Republicans have an outside chance of capturing a seat in Hawaii after former Republican governor Linda Lingle announced her candidacy. Last, the declining popularity of Obamacare and the likelihood that it will be heard next spring and decided next summer place the Court squarely in the middle of the presidential election developments.

Second: a likely vacancy. Justice Ginsburg is advanced in age (78), has dealt with severe health challenges, and could be heading towards retirement sometime in the next four years. Who will replace her in this most exclusive coterie – the government’s version of the 1% – is perhaps the timeliest subject completely ignored thus far in the nomination process. The Supreme Court’s de-facto leader, by process of simple arithmetic, is Anthony Kennedy. Should Justice Ginsburg retire during a Republican presidency, the president would have the opportunity to remove Justice Kennedy from his perch by appointment of a more conservative justice in the mold of Chief Justice Roberts or Justice Alito. This would significantly alter the balance of power on the Court, and alter its jurisprudential trajectory for decades to come.

Third: the Court’s involvement in contentious policy debates. The greatest chief justice, John Marshall, noted that it was the judiciary’s responsibility to say “what the law is,” to assert “judicial review” over all congressional legislation, though no such mandate exists anywhere in the Constitution. The Court’s recent history demonstrates that it has, for better or worse, fully assumed this responsibility. In the past ten years, the Court has invalidated military commissions approved by the Congress (twice), struck down mandatory school busing intended to alleviate racial discrimination, expanded the Second Amendment to apply to the states, raised the bar to bringing shareholder lawsuits against corporations, granted corporations and labor unions First Amendment rights to spend vastly more money in elections, and ruled that memorial crosses on public land do not amount to a governmental endorsement of religion.

In the near future, the Court will likely decide the following: the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) and, in so doing, define the outer limits of the Commerce Clause power; what remedy is available to criminal defendants who forgo plea offers based on bad legal advice from their attorneys; whether the full legal protections heretofore reserved for citizens will apply to non-citizen detainees captured in the War on Terror; whether religious organizations are immune from government inquiry in employment decisions; the constitutionality of immigration laws like those passed in Arizona and Alabama; the constitutionality of the National Labor Relations Board’s actions relative to Boeing’s decision to contract in a right-to-work state; and possibly, whether citizen initiatives like California’s Proposition 8 pass constitutional muster. In short, decisions involving hot button political issues loom on the Court’s horizon, and will surely invite increased attention to the Court’s rulings.

Against the backdrop of these important developments, one wishes and waits for the Republican presidential candidates to articulate a coherent vision of the Supreme Court's proper role in America (aside from inane denunciations of “legislating from the bench”), articulate the qualities and experience that, in the candidate’s view, make for an effective justice (beyond just “empathy”), suggest possible nominees for a vacancy, or even mention the governing body that has rightly been called the “First Among Equals.” Judging by what’s been offered in the economic realm -- the over-complex (Mitt Romney's 59 points), the already stale (Rick Perry's flax tax), and the unworkable (Herman Cain's 9-9-9 plan) -- one wonders whether the candidates are up to the chore.

According to recent media reports, Rick Perry advocates term limits for federal judges (an unconstitutional proposition), Ron Paul favors limiting the scope of cases the Court may hear (Bill Buckley proposed this years ago), and Newt Gingrich believes the Congress should be permitted to summon the Justices to Capitol Hill to explain their rulings (Newt, see www.oyez.org or www.scotusblog.com). These are not serious ideas. Surely the candidates are capable of more.

There is a legal maxim that “equity abhors a vacuum.” So does critical thinking on critical legal issues in the contest for the presidency. And make no mistake -- the contest for the future direction of the nation is playing out as dramatically in the courts as it is in the legislative and judicial branches, especially in an election year. As President Obama told House Majority Leader Eric Cantor during budget negotiations, “Elections have consequences, and we won.” Indeed, the President is right. Equally true is Justice Brennan’s famous “rule of five”: it takes five votes to win on the Supreme Court. Recent elections show that conservatives “win” when they make elections referenda on pressing legal issues, such as those listed above. The candidate who most effectively advocates a halfway coherent philosophy concerning the Supreme Court and the proper role of the “least dangerous branch” in contemporary American society will go a long way towards ensuring conservative ascendancy at the polls, and on the bench.


Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at BGTownhall@gmail.com.