In response to the Left’s claim that Judge Merrick Garland, Obama’s nominee for the Supreme Court, is a moderate, Kevin Williamson hones in on the central problem with our Supreme Court:
It is a testament to the corruption of the Supreme Court that there is never any question about how any of the so-called liberals on the Court — who are anything but liberal — will vote on any given question. Elena Kagan swore up and down during her confirmation hearings that there was no constitutional right to gay marriage — it was the usual exercise in Democratic taqiyya. But no serious person ever doubted for a second that she would discover one lurking in the penumbras the second she had a lifetime appointment and the power to substitute her own will for the content of the Constitution.
A judge isn’t a little bit of an activist any more than a person suffers from a little bit of cancer. Activism is activism, and cancer is cancer. There are better and worse cancers to have, to be sure, but you either have cancer or you don’t. Which is not to say that there will not be honest disagreements among justices about the meaning of a particular constitutional provision or how a statute should be construed. But the party-line character of the Supreme Court shows us the institution’s true nature: It is, effectively, a super-legislature, not a court. That the party-line character is lopsided, with a few conservatives still using Scalia’s Stupid But Constitutional stamp while the so-called liberals operate as a unit, is of course relevant; but the attention that is paid to the ratio of progressives to conservatives on the Court fails to account for the fact that this should not matter.
It should not matter — if the law were the law. If the law is whatever our black-robed secular clerics say it is, then it does matter what sort of political views justices hold. And if it matters what sort of political views justices hold, then the Supreme Court is not a court, but something else.
Or as a friend said, it’s dangerous leaving nine people believing that they can act as a politburo. My friend would have Congress pass a law saying that judges are completely bound by the Constitution’s written words, as seen (if necessary) through the filter of original intent. And if the Constitution doesn’t address a situation at all — such as gay marriage — it’s a matter for the states, not the federal government and the Supreme Court, and retrofitting the Second Amendment doesn’t make it so. It just means that the judges are engaged in constitutional legislation, which ought to be done away with forever.
All systems can be abused, says my friend, but the situation we have now is completely out of control.