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What happened to the Supreme Court?                                                                                     Print this essay

Posted at: Oct/13/2018 : Posted by: Mel

Related Category: Politics & Gov, The Law, Watching America,

We just completed the very contentious hearings and eventual appointment of Judge Brett Kavanaugh to the Supreme Court of the United States. Considering all the mudslinging, political maneuvers and protests, it is amazing that we could ever get anyone appointed to the high court. Yet, more interesting still is that the Congressional fight over the appointment of judges is a fairly resent manifestation in that swamp we call Washington.

First my disclaimer: I am not a judge, I am not a lawyer and I am not a politician. What I am is just an amateur who likes to try and understand what is unfolding in front of me. For that reason I do a lot of reading to try and understand what is really happening as opposed to merely accepting sound bites as gospel.

I think that ultimately, the reason that the federal judicial confirmation process has become so contested, is because federal judges have too often exceeded their traditional authority and their role. As judges have migrated their role, they have effectively started to create law, usurping the power of the elected representatives. Once this happened, the concern became if the judge in question when given an opportunity was going to create the type of law or legal precedent that elected representative were in favor of.

Alexander Hamilton famously argued “that the judiciary is beyond comparison the weakest of the three departments of power” and that “the general liberty of the people can never be endangered from” the judicial branch. Remembering high school civics or history, the three branches of government are Executive, Legislative and Judicial. Hamilton went on to qualify his claim as only being true as long as “the judiciary remains truly distinct from both the Legislature and the Executive.” Charles-Louis de Secondat, Baron de La Brede et de Montesquieu, generally referred to simply as Montesquieu is a French judge and political philosopher (1689-1755). Montesquieu wrote extensively on the theory of separation of powers. Hamilton agreed strongly with Montesquieu’s writings and quoted him in saying “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

If it is not apparent, our founding fathers borrowed significantly in the writing of our Constitution including heavy references to the writing of Montesquieu and John Locke (1632-1704).

Maintaining that separation emphasized by our founding fathers means limiting the role of judges. Throughout most of American history, the Supreme Court justices recognized that the meaning of legal texts including the Constitution did not change. Judges understood that their job was to interpret that original meaning – referring to tradition, history and precedent when necessary. When dealing with laws and statutes, this approach is known as textualism; in reference to the Constitution it is called originalism or Constitutionalism.

If originalism was all that a Supreme Court justices did, they would only need to be scholarly in the law and our governing documents. This is likely why a majority of Supreme Court decisions until about 1980 were 7-2, 8-1 and 9-0.

In the late 1970’s a new form of Judge began to appear at the Federal level and eventually the Supreme Court. These new judges began treating the Constitution as a “living document.” The concept of the Constitution as a “living document” means that its meaning or interpretation can change with changing times. That may seem like a reasonable idea at first; after all, the Constitution was written in 1787 and a nation’s interests, priorities and social norms can change dramatically over the ensuing generations.

But the bigger question may be “Should the Constitution keep up with the times?”

In truth, the Constitution establishes democratic processes, both in the states and in Congress, with the flexibility necessary to adapt to changing circumstances. This adapting happens through new laws and through constitutional amendments. One of the best examples of this is for example, how women earned the right to vote: not by judicial decree, but through the 19th Amendment. Elected officials whose job it is to represent and serve their constituents wrote and passed this Amendment. The judicial response then became, to ensure that the Amendment as written did not contradict other parts of the Constitution and case law ensured the Amendment was not circumvented.

On the other hand, if the Constitution is a living document, consider who ends up determining its new meaning and therefore creating new law: unelected judges with lifetime appointments. That means that law is being created by men and women who are intentionally protected from the will of voters at the ballot box.

As a result, many debates and compromises that should have occurred in the political realm have been short-circuited by the judicial branch for decades in the form of creating legal precedent. One of the most noteworthy example of this is Roe v. Wade, the Supreme Court’s 1973 decision discovering a constitutional right to abortion. The justices believed they were settling a contentious national issue. But they were doing nothing of the sort; they were inflaming it. While I believe that a woman should have access to the medical procedures of her choice in a safe and licensed environment, this decision should have been made on the floor of the legislature, and not by the Supreme Court. Europe’s laws on abortion were written by the legislatures, so there are compromises and restrictions. In the U.S. “abortion is a right by judicial decree”, so every regulation of it is contentious.

It is easy to argue that the legislative branches of government are so mired in political infighting that very little work gets done. But the voters have a chance every couple of years to change who is representing them until reasonable legislative action that support society’s new needs and challenges finally happens. The argument that while the elected representatives fail to move the judicial branch can show expediency and take action is timely, but it only solves short term problems while creating long term controversy. A court of unelected officials is ultimately creating lasting law based on their personal opinion in lieu of legislative action. The reason it is “lasting law” is because one of the cornerstones to judicial review of any case is how it relates to previous legal precedent. Unfortunately, precedent is supposed to follow law and not the other way around. Worse yet, we now have far too many cases where precedent follows precedent with no actual legislated law as a foundation.

It is nonetheless admirable that the judges wish to render verdicts that solve the cases before them by publishing a decision. Unfortunately, their decisions become de facto law without representation. The obvious result is that the controversy over judicial appointments is ultimately of their own doing. Certain judges have shown they are willing to create law rather than waiting for legislation. Other more “conservative” judges are focused on what the law says rather than what they believe society needs, but are compared to judges who may create law.

During the Kavanaugh hearings there was a great deal of controversy about his voting record on guns rights and gun laws. Senator Dianne Feinstein even went so far as to say more people would die in mass shootings if he was confirmed to the Supreme Court. Ultimately, that is not because Judge Kavanaugh is pro-gun, it is much more that he is pro-constitution. If Ms. Feinstein pushes through more federal laws restricting gun use and gun ownership, he will likely uphold them in the courts. What many legislators are hoping for is judges who will do their job for them and accept the burden of the associated controversary.

For the most part, the difference between a conservative and a liberal on the Supreme Court, or one of the Federal judgeships is how they interpret the Constitution. Putting more conservative Justices on the Supreme Court will not change gun laws or close women’s health clinics. But more conservative judges will mean that the burden of change must come from the legislative and executive branches.

Good intentions aside, I am strongly in favor of the separation of powers between the 3 constitutionally defined branches government. If federal judges returned to the more modest approach our Founding Fathers envisioned for them, then the job of creating political decisions would be left to our elected representatives. This would minimize the creation of legal ruling according to preferred personal policy preferences. This wouldn’t make every Supreme Court decision unanimous. Judges can interpret history and tradition differently, and sometimes the meaning of a text is ambiguous. Nor does it mean courts would never again make a controversial ruling.

The controversy and mudslinging that judges currently endure before the Senate Judiciary Committee is ultimately of their own making. Once judges started to create law, the Senate determined that they had a legitimate right to debate the virtues of how a given appointee might rule in controversial situations where the law is yet to be defined. When Americans realized that lower court judges and Supreme Court justices were exercising their will rather than just their judgement, judicial nominations became much more heated.

As former Associate justice of the Supreme Court Antonin Scalia said: “A freedom-loving people respectful of the rule of law may be expected to let lawyers decide what a constitutional text means; but they cannot be expected to let lawyers decide what a Constitution ought to say.” After all, lawyers may know the law better than the rest of us, but they are certainly not any better at value judgements than anyone else.

With 435 Representatives, 100 Senators and 1 President, there are plenty of people who have been elected to create law. It would be nice to see the judicial branch of Government return to its historical status as what Hamilton famously called “the least dangerous branch.”

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Martin van Doren
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