3 Questions About SCOTUS for Tonight's GOP Presidential Debate

The Supreme Court deserves more attention in the 2016 White House race.

The future of the U.S. Supreme Court is one of the most significant issues in the 2016 White House race. When the next president takes the oath of office in January 2017, Justice Ruth Bader Ginsburg will be 82 years old, Justice Anthony Kennedy will be 80, Justice Antonin Scalia will also be 80, and Justice Stephen Breyer will be a spry 78. Needless to say, any one of those justices might retire in the next four years, providing the next president with the opportunity to appoint one or more new justices who could go on to shape (or misshape) American law for decades to come. It's therefore imperative that all presidential candidates explain what sort of legal philosophy they favor and what sort of judicial candidates they hope to appoint.

To help this process along, here are three SCOTUS-related questions that I would like to hear asked and answered at tonight's GOP presidential debate.

1. Donald Trump has repeatedly praised the Supreme Court's 2005 eminent domain ruling in Kelo v. City of New London. Mr. Trump, do you stand by those statements? Other candidates, do you agree with Donald Trump that Kelo was correctly decided?

2. Sen. Rand Paul has repeatedly praised the Supreme Court's 1905 decision in Lochner v. New York, in which the Court struck down an economic regulation on the grounds that it violated the unenumerated right to economic liberty secured by the 14th Amendment. Sen. Paul, do you stand by those statements? Other candidates, do you agree with Rand Paul that Lochner was correctly decided?

3. In 2012 Chief Justice John Roberts invoked the doctrine of judicial deference in his opinion upholding the Patient Protection and Affordable Care Act from constitutional challenge. According to Roberts, "It is not our job to protect the people from the consequences of their political choices." Candidates, do you agree with the chief justice's description of the Supreme Court's job?

Related: A Guide to Supreme Court Vacancies for GOP Candidates

Comments

[Alice Bowie]

I know Libertarians are neither Liberals or Conservatives.

However, more liberty is lost with Conservatives than liberals.

Yea, liberals may spring for welfare but liberals are less likely to push for advancing our police state.

Conservatives are ALL IN for a police state.

[Notorious UGCC]

Cool story, sister.

[sarcasmic]

Liberals openly despise economic liberty. They do not want there to be any economic activity without asking permission and obeying orders from government. They want to spend your money for you, making you pay for things you neither want nor need, while limiting the choices you have with what money they allow you to keep. Liberals have never seen a tax, regulation, or government program that they didn't like. They are economic totalitarians. Conservatives at least give lip service to economic liberty.

[Apatheist ?_??]

Yea, liberals may spring for welfare but liberals are less likely to push for advancing our police state.

This is definitely not true at the local level or the presidential level. Only marginally so in congress.

[sarcasmic]

Show me a city that is a police state, and I'll show you a city with a liberal government. Liberals love to pass new laws. Lots and lots of petty laws. Thing is, even petty laws must be enforced, and enforcement means obey the cops or else. Liberals may claim to not want a police state, but a police state is the natural result of liberals passing law after law after law to control the people they supposedly serve.

[Rhywun]

Liberals claim to love free speech too. Also a lie.

Also, Alice needs to pick up a history book. The ignorance is shocking.

[Tonio]

You assume that the person posting as Alice Bowie is serious. I was taken in by that for a while until a fellow commenter pointed out that Alice Bowie was the name of a character in the comedy of Cheech Marin of Cheech and Chong fame.

[Rhywun]

I dunno, xe's been here a long time and I've never detected any trollery.

[Brian]

I'm glad that SCOTUS affirmed the right of individuals to bear arms. To liberals, that's more a more debatable constitutional right than abortion, even though the right to bear arms has its own, specific, explicit amendment.

Otherwise, I'd be relying solely on that horrible police state for protection.

Which party is all about a police state again?

Because cops in NYC are so friendly and dreamy.

[Jerryskids]

Jesus Christ, NYC is not a police state. The only people subjected to any sort of force by the police are those who refuse to do what the police command them to do - if you don't want the police to use force on you, just do as you're told. Same with the IRS or the EPA or OSHA or ISIS or the Mafia, just do as you're told and nobody gets hurt. How in the world could anybody be so dense as to think that's a police state?

[sarcasmic]

*sproing*

Great. Now I need a new sarcometer.

[Francisco d'Anconia]

Which Team is worse?

It's a push, for all intents and purposes. They both want to take your liberty...but on different issues.

A pox on both their houses.

[Apatheist ?_??]

They both want to take your liberty...but occasionally on different issues but mostly on the same.

[LynchPin1477]

liberals are less likely to push for advancing our police state

I agree insofar as they openly advocate for tougher policing. But plenty of progressive policies require a police state - progressives either don't acknowledge that or naively think it will only be directed against those they disagree with. And progressives are happy to openly advocate for a regulatory state with most of the powers of a police state.

But you are right insofar as conservatives see tougher policing as a feature, particularly with regards to immigration and drugs.

[See Double You]

Leftists love the police state. Gotta crack down on those unlicensed lemonade stands.

[some guy]

Like that time the liberals blocked the Patriot Act? Or that time the liberals refused to re-up the Patriot Act? How 'bout that time (yesterday) when the liberals blocked CISPA?

[See Double You]

Or stopped the reauthorization of FISA, or blocked the NSA from spying on American citizens...

[some guy]

Or that time they refrained from using a taxation agency to monitor compliance with a health law.

[Notorious UGCC]

"In 2012 Chief Justice John Roberts invoked the doctrine of judicial deference in his opinion upholding the Patient Protection and Affordable Care Act from constitutional challenge. According to Roberts, "It is not our job to protect the people from the consequences of their political choices.""

It's true that Roberts framed the issue that way, but that's because Roberts is dumb.

The relevant question in the Obamacare case was: which "people" should we be deferring to here? The people of the United States, as embodied in Congress with its limited, delegated powers, or the people of the various states?

The challengers to Obamacare didn't say it was beyond the competence of *any* government to enact, but that it was beyond the competence of the *federal* government, under the 10th Amendment, and within the purview of state power.

So before you defer to the "people," you need to say which people.

Roberts is one of those loons who defers to the people's *federal* representatives, even though the people only gave those representatives limited powers.

[Almanian's Rusty Woodchipper]

liberals may spring for welfare but liberals are less likely to push for advancing our police state.

HAaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaHAHAHAHAHAHAHA!

Ohhhh - that's good

[Jerryskids]

Funny that SCOTUS invokes 'deference' in some areas but not in others. Given that both the President and Congress take oaths to protect and defend the Constitution, shouldn't there be an assumption that whatever actions they take are Constitutional by their interpretation of "Constitutional"? So how is it that SCOTUS doesn't rigorously defer to the President and Congress on what is or is not Constitutional but instead insists that their interpretation sometimes trumps the President's or Congress' interpretation?

[R C Dean]

Here's the thing:

No one branch's conclusion that something IS Constitutional should trump another branch's conclusion that it is NOT Constitutional.

Thus, if Congress concludes that X is not Constitutional, they don't pass it, defund it, whatever, and nobody can pass a law or fund it over their objection.

The President can veto something he thinks is unconstitutional. That veto can be overridden by Congress, so its not an absolute trump card for the President.

And of course SCOTUS can strike any law as unconstitutional, and nobody can override that without changing the Constitution.

What Roberts has done is inverted this with his "deference" - essentially, if either an executive agency or Congress says something is Constitutional, then SCOTUS will defer. In combination with their approval of legislation by executive agencies via "rulemaking", the default is now that if one branch says it is Constitutional, then the other branches have a very difficult road in reversing that if they disagree.

The ratchet was supposed to go one way, and has now been reversed.

[Francisco d'Anconia]

"It is not our job to protect the people from the consequences of their political choices."

This may be the most ignorant thing I've ever heard. That is EXACTLY your fucking job, moron.

The reason the Founders chose a republic over a (pure) democracy was that they realized that a democracy is a tyranny of the majority and rights are something that cannot be voted away.

So you limit power via constitution so the majority is incapable of voting away the rights of the minority. To say "You made this choice and YOU need to live with it" is utter horseshit as there were X% (the minority) who wanted nothing to fucking do with it, yet their rights are violated by it.

[sarcasmic]

Tyranny of the majority is a good thing if you are in the majority.

/if liberals were honest

[LynchPin1477]

I'd like to see them pressed on why they have any particular opinion, but I know that is too much to ask.

[See Double You]

Those are excellent questions, Mr. Root. Sadly, I doubt the moderator will ask such questions. They'll be more along the line of, "Mr. Trump, have you changed your mind as to the code name you'd adopt?"

[some guy]

"Can we get a show of hands from the candidates on who is currently active in Fantasy Football? And hold up a number of fingers equal to your wins so far this season."

[some guy]

Trump: "Kelo? What's a Kelo? Look, I've done business in Europe. I know how to get it done. But this is America, and in America we deal in pounds or ounces or, you know, we'll be dealing in tons once I'm done fixing this country."