Until the Supreme Court is restored to its Constitutional and traditional role, we will never have peace. We are more polarized than ever; it will only get worse.
Knowing men would try to accumulate power, either for personal gain or simply because they felt entitled to rule over lesser men, the Founders devised a brilliant plan to divide power, both between the Federal Government and the States and also between the various branches of Government.
Under this framework, the Judiciary applies the law; it does not make the law.
Of late, however, the Supreme Court has claimed jurisdiction over many of the most important questions of our time. Short-circuiting the political process, partisan judges have imposed new laws from the bench, often in defiance of the Tenth Amendment, which restricts Federal authority to a finite list of enumerated powers.
As National Review’s Jay Cost wrote, “[The] Court often does not try to restrain itself, instead governing unapologetically as a kind of Federalist super-legislature — crafting public policy on the federal, state, and even local level, independent of direct public oversight.”
Don’t we elect legislators for that? Shouldn’t people making laws be accountable to voters?
Sadly, greed for power can never be satiated. In Trump v Hawaii, a sizeable minority (four of nine justices) would have set aside immigration law to prevent a sitting President from fulfilling his duties under 8 U.S.C. § 1182(f).
While expanding their own powers, these same justices showed little regard for First Amendment freedoms of speech and religion, as evidenced by their dissenting opinions in Life Advocates, Masterpiece Cakeshop, and Janus.
If these justices ever become a majority, is there any law they will not re-write? Would there be any restraint on their power to remake policy on any issue? Would any of our freedoms be safe?
They justify this power grab by claiming that the Constitution is a “living, breathing” document. Translated, that means, “When we are in charge, the Constitution means whatever the hell we say it means.” All dressed up in the obligatory legal doublespeak, of course.
Imagine a scenario in which a Democrat president manages to get a fifth justice on the court and is succeeded by a Republican President. The new administration would be completely hamstrung. No action would be safe from judicial veto. No executive order. No legislation. It is hard to imagine anything more destabilizing for our republic.
No wonder Cost concluded that the expanded role of the Supreme Court has unhinged our politics. No kidding. Five ways, at least.
First, as Cost pointed out, “One of the problems with such rule by a political elite immune from public influence is that the American people are not well suited to it. We the people expect to be in charge.” Having lost our political voice, “the nomination of a Supreme Court justice is the only means of control the public has over the policymaking powers of the Court.”
Second, as a result, we quit thinking and talking about issues and focus on owning that fifth lifetime seat at the only debating table that matters. When we do talk about issues, it’s more about mobilizing our respective bases and frightening independent voters than about honest dialogue.
And when we lose that fifth lifetime seat, we don’t lose on one issue; we lose on every issue.
Third, we become hypocrites. We yell “stare decisis” for past decisions we like, but pledge to overturn other decisions as soon as we get that fifth lifetime seat.
Fourth, there is no compromise. Court decisions tend to be all-or-nothing propositions. There is little room for compromises that preserve unity by mitigating the worst fears of the losing side.
Compromise is difficult, particularly when one side keeps moving the goalposts. Yesterday, in the name of tolerance, they only wanted same-sex marriage. Today, they insist you serve punch and cookies at the ceremony. Some “tolerance.” Yesterday, they only wanted the right to abort their children. Today, they demand that you pay for it. Further, they insist nobody can get a medical degree until he does an abortion. So much for “choice.”
As difficult as it is to achieve, why bother with compromise when unelected justices could, at any time, arbitrarily set aside your deal and give either you or your adversary everything?
Without public input and compromise, unity is impossible.
Fifth, once judicial decisions are imposed, there is no good mechanism for midcourse corrections. If the judges failed to anticipate all of the unintended consequences of their action, the people can be stuck with the results for decades, in circumstances that may be very different from the case at hand. For example, how can decades-old immigration rulings (e.g. Flores v Reno) anticipate the border security issues of today?
Compare the aforementioned chaos surrounding Court degrees with the relatively quiet passage of Dodd-Frank in 2010 and subsequent revisions in 2018. Even though both of these actions were sweeping in their effect, they were enacted by our elected representatives with relatively little pain and drama. Just the way the Founders intended.
Progressives want a Court which will implement their policy agenda without delay. They have a country to remake and they have no time for Constitutional niceties. Classical liberals (a.k.a. conservatives) want a Court that will defend our Constitutional rights and leave all other questions to the People to decide, through the democratic process.
And when we lose that fifth lifetime seat, we don’t lose on one issue; we lose on every issue. With so much at stake, either side will do its best to weaken the President who might give its opposition that fifth lifetime seat. You can attribute most of the rancor against Reagan, Bush, Clinton, Bush, Obama, and now Trump, over the consequences of losing that fifth lifetime seat. Is that any way to run a country?
Until the Court yields its power and lets the People decide the big issues, we won’t have national unity.