Quote of the Day:
For 50 years, the Supremes decreed the society the Left envisioned. No wonder liberals will do whatever it takes to keep control of the high court.
That is the tease above a City Journal story on why the coming battle over replacement for the late Supreme Court Justice Antonin Scalia, whose originalist interpretation of the Constitution meant that he tried to read it to ascertain what the people who wrote it meant, will be so nasty. The lengthy article is by Brian C. Anderson. It is a history of how we came to this pass. Anderson writes:
It’s worth understanding how our courts got into this mess, so we can see how imperative it is to get them out. The government by judiciary we now have is not what our Founding Fathers had in mind.
The original originalists, they imagined that a life-tenured, independent judiciary would merely interpret the law as the people’s elected representatives made it—including the supreme law embodied in the Constitution.
But they would have no right to create law. As Alexander Hamilton explained in The Federalist: “The courts must declare the sense of the law, and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” For the Framers, that would be tyranny and should end in impeachment.
The Supreme Court's power grab didn't start yesterday, or even in this century. Anderson traces it to three important decisions, two of which are universally decried today and one that had an outcome we all approve today (school integration) but which nevertheless required asserting privileges for the Court that would have shocked the Framers. Over time, the idea of what a judge should be changed from the Founders' limited conception:
The heroic new judge drew inspiration from a doctrine called “the Living Constitution,” which held, as Justice William Brennan put it, that: “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” More than adapt, the Living Constitution could bring about epochal social changes whenever judges like Brennan believed that justice demanded them. Lawmakers began to put off contentious issues, looking to the Supremes to take them off their hands.
Over the last decades the "living Constitution" school of thought has led to many progressive victories. Theoretically, a Court with a majority of politically conservative justices who believed in the living Constitution could also provide conservative victories. As Anderson describes it, sticking to the Constitution is the only way to ensure that neither group imposes its philosophy through judicial fiat:
Originalism ultimately favors neither Left nor Right, but self-government. President Ronald Reagan, swearing in Scalia in 1986, put it beautifully: the Founding Fathers, he said, “knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people?” That is still the question.
In pulling out all the stops to get a third Obama justice on the Supreme Court, the left will make the argument that the Supreme Court can't function with only eight justices and must have a ninth to fill Scalia's vacant seat. This is nonsense. Josh Blackman and Ilya Shapiro explain why in today's Wall Street Journal:
Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.
Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.
In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts.
Senator Mitch McConnell has said that the Senate will not confirm an Obama nominee this year. But all the battle and nastiness will have been in vain if Hillary Clinton or Senator Bernie Sanders is the next president.