Dahlia Lithwick, Slate’s correspondent for the courts and law, is apoplectic that the right did not consider Obama’s nomination of Merrick Garland (see Ms. BWR’s analysis here) for the Supreme Court, and now will never do so. She wrote about this recently in Republicans Stole the Supreme Court. Ms. Lithwick cites no legal or Constitutional authority to support her charge of nefarious action. Her crie de coeur is based solely on notions of fairness – something always important to progressives, but only when it can be argued favorably for them.
Senate Majority Leader Mitch McConnell refused to schedule hearings on Garland, stating that such an appointment should be a decision for the next President. That was a political decision that the American people just recently had an opportunity pass judgment upon.
I believe it was no less a personage than President Obama who, days after his victory in 2009, told America “elections have consequences.” Indeed, he said it as justification for ramming a series of acts through Congress without even the slightest attempt to reach across the aisle. I recall exactly zero progs complaining about the unfairness of that in 2009, nor the trickery Harry Reid used to pass the Affordable Healthcare Act later in the year so that it would not have to undergo a final vote in the Senate — a vote the progs would surely have lost after a Republican was elected to fill Ted Kennedy’s vacant seat. Nor did I hear a peep from the left in 2013 when Harry Reid overturned the Senate’s filibuster rule – a rule whose history dated back to 1806 – in order to pack the DC Court of Appeals with progressive judges.
Ms. Lithwick’s histrionics aside, the fact that control of the Supreme Court was at issue was dominant in the election. A nationwide exit poll shows that 61% of voters stated that the Supreme Court nomination was important, or most important, in their decision to vote. The people have spoken.
That is not enough for Ms. Lithwick, for she believes that the Republicans have proven by their actions that “keeping the Supreme Court conservative was more urgent than governance or leadership or an independent judiciary.” What pure horse manure. Ms. Lithwick is trying to claim the moral highground here when the truth is that she is every bit as invested in the makeup of the Court. And to make matters worse, it is her political side of the aisle that made this the most important political question of the 2016 election. So spare me, Ms. Lithwick.
When Ms. Lithwick charges that the right wants to keep the Court “conservative,” she does so in the political sense. But the reality is that Supreme Court has no authority to make “political” decisions. The fiction that a particular court decision can be labled “conservative” or “progressive” depending on the outcome is a construct of progressives that has, all too unfortunately, become the language of our Court decisions.
The Supreme Court exists to interpret the Constitution and the laws passed by Congress. It does not have any authority in Article III, Section III of the Constitution to amend the Constitution, nor to write new laws. The latter are political powers explicitly reserved in the Constitution to the people and their elected representatives.
So how do we get from that, as written in the Constitution in 1792, to today, where the most important part of the 2016 election was the makeup of the Supreme Court?
Progressives politicized our Courts from day one of the birth of the Progressive movement over a century ago. The most important early champion of the movement, Woodrow Wilson, famously called the Constitution unworkable because government is a “living thing” that cannot function with “checks and balances.” From this, we have the progressive belief that the Constitution can be reinterpreted without reference to its original meaning in order to make new Constitutional law out of whatever it is five justices feel at the moment should be the appropriate policy. That is why the progressive left is fixated on the Supreme Court. It is not a Court so much as a Politburo the progs have successfully used to circumvent and alter the Constitution over the past century.
Lest you think I am gilding the lily with my claims above, take a look at some of the writings of law professors at our most distinguished institutions. For instance, there is Professor Mark Tushnet of Harvard Law School, one of the leading progressives in academia today. You can read his prescription for the role of Supreme Court justices in an utterly jaw dropping list quoted at length at Powerline. You will find no mention of trying to interpret the Constitution in light of the Framer’s intentions. To the contrary, Tushnet, the scurrilous bastard that he is, advocates that Supreme Court justices should go so far as to dispense with stare decisis (i.e., respect for prior decisions) in order to “press [the law] into the service of liberal goals.” His prescriptions are a road map for progressive sabotage of the Constitution. Nothing that he suggests has anything to do with jurisprudence and the legitimate function of our judges; it has everything to do with progressive politics.
As to Ms. Lithwick’s indictment, that Republicans have no interest in maintaining an “ independent judiciary,” Ms. Lithwick uses the term “independent” in the loosest possible sense, meaning that courts should be free of external political influence. But what she really wants is a judiciary that is independent of the original meaning of the Constitution, the intent of the framers, and that will, in one sense, depend upon politics. She wants the Court to use extra-Constitutional powers to circumvent the democratic process and the Constitution. That is not an independent judiciary so much as it is an outlaw judiciary.
Alexander Hamilton opined in the Federalist No. 78, arguing in favor of passage of our Constitution, that the judiciary would be the “least dangerous branch of government.” He had that completely wrong. Our Founders, in their failure to set out checks and balances on the power of the courts in Article III, failed to grasp the danger that an out of control judiciary posed to the Constitution and our Republican system of government once politicized by the progressives. The judiciary has, under influence of the progressive left over the past century, become the most dangerous branch of government.
That danger will only be addressed one of two ways. With Trump about to take office, hopefully he will appoint originalists to the Supreme Court. But the only lasting solution to this issue is to engage in Court Reform. I know of only two politicians who have articulated this, Newt Gingrich and Ted Cruz. But there is no other option. Such reform should, at a minimum:
1. Provide for a 2/3rd majority of Congress to overrule any opinion of the Supreme Court as to Constitutional Law. As it stands now, to overturn a Supreme Court pronouncement of Constitutional Law, the only way to negate their opinion is to go through the arduous process for amendment set forth in Article V of the Constitution. That process is appropriate for the demos of this country to make substantive changes to our Constitution. The process, however, should not be used as a shield for Supreme Court decisions made by five unelected judges. This solution would place a reasonable “check and balance” on the power of the unelected members of the Court.
2. Provide guidance for all Courts interpreting Constitutional provisions, requiring that the “intent” of the people who signed and passed the provision to be ascertained and to be given determinative effect..
3. Provide guidance to the Court interpreting laws be construed strictly, requiring that the “intent” of the people who signed and passed the law to be ascertained and to be given determinative effect. It should also be explicitly stated that it is not for the Courts to amend or rewrite legislation passed by Congress, as Justice Roberts so recently did with Obamacare.
4. Provide guidance to the Court that, in any decision regarding any case where the authority of a regulatory body to act is at issue, the regulatory body’s authority is to be strictly construed against a finding of such authority in the absence of a clear Congressional intent to the contrary.
5. Provide that courts should apply a presumption to issues of social policy not directly mentioned in the Constitution that such are not justicable by the Courts and remain within the sole province of those bodies with legislative authority.
6. Provide for any justices who engage in a pattern and practice of violating the above guidance to have violated the terms of “good behavior” and provide for them to be impeached and removed from office by a 2/3rds majority vote of Congress.
Only a judiciary that is “dependent” on the original meaning of the Constitution to determine its decisions can be framed as “indpendent” in the political sense. But try to make any of the necessary changes to the manner in which our Courts function in order to restore Constitutional government would, I imagine, cause Ms. Lithwick to turn her crie de coeur turn into a full fledged primal scream.
Progs, they are so much fun to poke. We need to do it far more often.