Supreme Court

Supreme Court Appointments a Big Deal Because Government Constantly Overstepping Bounds

If the other branches of government stayed within their constitutional limits, the Supreme Court wouldn't be as prominent.

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"If you don't believe this election is important," said Bernie Sanders at the Democratic National Convention, "if you think you can sit it out, take a moment to think about the Supreme Court justices that Donald Trump would nominate and what that would mean to civil liberties, equal rights and the future of our country."

The wind-up there is pretty silly. If you don't believe the election is important, you probably didn't spend your precious leisure time watching Sanders address the DNC. There are a lot better shows on TV.

Sanders' pitch, however, is—as they say—resonant.

Fear about future Supreme Court nominees resonates among Democrats, who don't want to see Antonin Scalia replaced by another Antonin Scalia.

Worry over Supreme Court picks also resonates among Republicans: Ensuring a conservative majority on the court is a major reason to support Trump, said delegates to the GOP convention last month.

In one regard this is perfectly rational. Anthony Kennedy, the swing vote, is 80. Ruth Bader Ginsberg is 83. Stephen Breyer is 77, Clarence Thomas 68. Scalia's seat seems likely to stay open until at least November and probably until next spring. So President Obama's successor could appoint two, three, or even four justices, especially if he or she wins a second term.

In another regard, however, the heavy emphasis on the Supreme Court is rather dispiriting.

It is dispiriting because the court's principal function consists of setting the boundaries for government action. In that role, it ought to be heard from only on rare occasions—that is, if the other branches of government respect the limits the Constitution imposes upon them.

Unfortunately, the other branches do not, and the Supreme Court has had to step in time and again to yank their leashes—or, just as often, to let them run free.

During the Bush administration, the court had to put its foot down more than once with regard to habeas corpus. In Rasul v. Bush, it declared that the principles of habeas corpus applied even to non-citizens held at Guantanamo Bay. Congress tried an end-run around that ruling with the Military Commissions Act; the court ruled the legislation unconstitutional.

In 2008 and again in 2010, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms. In 2010, it defended the First Amendment when it ruled—in Citizens United—that government cannot censor books and movies just because they support or oppose the election of political candidates.

In 2012, the court upheld the constitutionality of Obamacare's mandate forcing people to buy insurance—but two years later it exempted religious employers from a similar mandate.

In 2015, it declared same-sex marriage a constitutional right and defended the First Amendment again from ordinances regulating signage. This year it brushed back restrictions on abortion and challenges to affirmative action in higher education.

Partisans have rarely greeted such decisions with Buddha-like serenity.

Republican Gov. Scott Walker of Wisconsin proposed a constitutional amendment to let states decide the legality of gay marriage. There is now substantial liberal support for repealing the Second Amendment, and it's pretty clear that Democrats have grown tired of the First Amendment, too: Hillary Clinton has threatened to rewrite it "in my first 30 days as president" to reverse Citizens United.

As the debate over Hobby Lobby demonstrated, many progressives also think religious liberty should be respected only in church—and sometimes perhaps not even then: Iowa's human-rights council recently had to rewrite a brochure on sexual orientation and gender identity that seemed to suggest churches might get in trouble for preaching the wrong things about such issues.

This is troublesome because of the misunderstanding it reveals about fundamental rights and liberties. By definition, individual rights have intrinsic worth and cannot be outweighed by competing considerations such as national security or a "level playing field" among political speakers during campaign season.

Yet too many today act as though rights have only instrumental worth: They are useful so long as they serve some higher purpose, but can be overridden for a sufficiently strong reason—such as a hoped-for marginal reduction in national health-care expenditures or a hoped-for marginal renaissance of the "traditional American family."

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The result of this sort of thinking is that both Congress and the executive branch, both Republicans and Democrats, are constantly pushing to expand the scope of government power—always for a good cause, of course!—rather than respecting the proper boundaries of government action. And they all want the Supreme Court to thwart the opposition but enable their own designs.

Rather than obey the rules—the Constitution—they want the umpire to rewrite the rules in their favor. And so the Supreme Court, which should be called on to mediate such disputes only rarely, has become as politically important as the other two branches.

America doesn't need more politicians who will bend the Supreme Court to their will. It needs politicians who will keep their own designs within constitutional limits in the first place.

This column originally appeared at the Richmond Times-Dispatch.

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  1. I’d love to know why even the liberal justices have hung on through Obama’s term like grim death itself. They seem to be highly averse to giving Obama any more SCOTUS picks.

    1. I am sure there’s a tontine.

      I mean, Ginsberg’s ovaries must have more rings than Saturn at this point.

      1. And I thought they smelled bad… on the outside.

      2. Thanks for that, Cynic. I shan’t sleep for a week now.

      3. And Cynic provides today’s evidence why Reason.com has the best comments on the internet.

    2. Because they recognize that Obama will nominate talentless political hacks instead of skilled intellectual jurists. The oldsters were appointed at a time when the SCOTUS was supposed to be above politics. Sure, they may be liberal, but they at least attempt to use legal reasoning in their decisions. They are professionals at heart and take pride in their profession. For them to see it diminished with blatant political nominees like Kagan and Sotomayor has to turn their stomach.

  2. Yet too many today act as though rights have only instrumental worth: They are useful so long as they serve some higher purpose, but can be overridden for a sufficiently strong reason

    In particular, Hillary’s position.

    On second thought, it’s explictly
    Yet too many today act as though rights have only instrumental worth: They are useful so long as they serve some higher purpose, but can be overridden for a sufficiently strong reason

  3. GayJay wants to make Nazis a protected class which may require amending the constitution.

  4. It needs politicians who will keep their own designs within constitutional limits in the first place.

    Now where are we going to find any of those?

  5. Not to underestimate her evilness but think it’s mostly bluff and red meat to her base re HRC’s comments on Citizens United and the Heller decision. She doesn’t have any say which cases SCOTUS decides to review.

    1. She doesn’t have any say which cases SCOTUS decides to review.

      No, but the Justices she appoints will. And both of those cases were 5 – 4, with the 5th vote (Scalia) now gone. Cases to “limit”/”interpret”/overturn can easily be taken up by SCOTUS, especially with one or two anti-CU/RKBA justices on board.

      1. Not saying the Citizens United and Heller decisions would not be reversed if HRC gets her picks for new SCJs but just that it’s by no means a done deal.

        Whatever SCOTUS configuration there ends up being they would have to take up relevant cases for review. There are also potential political downsides to reversing these decesions, something HRC and the Court I’m sure are well aware of.

        At this point there should be much praise to Robert A Levy for initiating the Heller case, something the NRA fought tooth and nail to sabotage till they were out of legal options.

        If the NRA had gotten their way there would be no Heller victory and the chances of getting such a decision now and in the immediate future are approximately zero.

        All the above documented in Brian Doherty’s excellent book: Gun Control on Trial.

        A great read, very highly recommended.

        1. The NRA was justifiably concerned about a loss in Heller, which would have established a very damaging SCOTUS precedent. Heller was extremely lucky.

          1. It was a gamble but the Heller litigants did their homework pretty thoroughly and decided the then configuration of SCOTUS was in their favor.

            It was the right decision, there’s no way now and for the forseeable future that there would be similar outcome today and if they had not proceded or been legally blocked by the NRA then DC’s laws re gun control (essentially abolishing 2A rights) could be replicated in other States without the likelihood of a successful legal challenge.

      2. There are also potential political downsides to reversing these decesions

        Heller, in particular, contains a handy guide to getting your gun control past the Court. Its a very weak reed.

        CU is a little stronger, and might (or might not) have the support of major media organizations, but the 1A has a couple of big holes knocked in it now that could be expanded to gut the 1A rights of organizations.

        So, they can probably do the work without formally overturning precedent.

        1. My feeling is SCOTUS is leaving it up to the States to decide their position on the 2A with the understanding that anything similar to DC’s provisions prior to Heller would not withstand Constitutional muster. Beyond that the States can set their own policies re gun control, some will be awful, CA, CT, NJ etc. and some great.

  6. What are you on about? The Supreme Court is apolitical.

    That’s what I’ve been told.

  7. As long as the Reps hold the Senate we’re good. They wouldn’t HAVE to approve anyone. I keep telling people there is no empty seat because the Constitution doesn’t specify the number of Justices. Technically the Senate could dissolve the Court by letting them all die off and not replacing them. It’s a serious flaw in the Constitution.

    1. As long as the Reps hold the Senate we’re good.

      And how long will that be? What are the odds the Senate will be Republican next year, assuming HC wins given there is even a minimal degree of a coattails effect?

  8. If I had the power* to rewrite the consititution, Supremes would serve for 18 years with a new one rolling on every two years, in odd years. So every odd summer would be a nomination fight, but it would stay out of election season. You would know when elected that a president gets 2 picks during his term in office.

    At this point, we would have 4 Obama picks, 4 Bush picks and a Clinton pick on the court.

    Retired Supremes would be barred from holding federal positions, elected or appointed.

    *Actually, this would be near the bottom of the list if I had that power.

    1. That’s not bad.

      I’ve considered a mandatory retirement limit of 70 years old *or* 10 years on the bench – which ever is longer. Someone appointed at age 60 or earlier leaves at age 70 (and there’s no surprises except when one wants to drop out earlier – and how many have retired before 70?) while getting appointed after 60 still gives you 10 years to work – and that should be sufficient as SCJ is not a career, its a capstone on a career.

      And it prevents almost all the need to impeach justices who try to stay long after their mental faculties have deteriorated.

  9. . . . if the other branches of government respect the limits the Constitution imposes upon them.

    To truly know the limits of a thing you must test it until destruction.

  10. Every election year about this time I start fantasizing about electing the most Liberal/Progressive bunch possible to Washington, and then sitting back and waiting until their bungling allowed a terrorist group to detonate a nuclear bomb in DC, eliminating the whole lunkhead lot of ’em.

    The problem with that fantasy is that my opinion of the Islamofascist camel pesterers leads me to suspect that they would be incompetent enough to set the bomb off during a Congressional recess.

  11. “America doesn’t need more politicians who will bend the Supreme Court to their will. It needs politicians who will keep their own designs within constitutional limits in the first place.”

    Uh, I think we are SOL with this ever happening.
    The allure of power and money is too strong.

  12. Kinda in the supreme court’s nature to be full of people who are about to die.

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