President Trump reports — via Twitter, of course — that he will announce his first Supreme Court nomination, to replace the late Justice Antonin Scalia, at 8pm on Tuesday.
A few months back I noted that the Supreme Court shouldn’t be so important. What I meant was that, if the Court were performing its proper constitutional role, the consequences of individual nomination battles would be much smaller. Alas, because the Court has repeatedly chosen to act as a super-legislature on issues ranging from abortion and same-sex marriage to affirmative action and health care, the stakes of our looming confirmation fight are very high indeed.
City Journal editor-at-large Myron Magnet puts those stakes into historical context:
At the core of our political disagreement today is whether Americans are to be governed by the Constitution written by the Founding Fathers or by a Supreme Court acting as a permanent constitutional convention, making up the law as it goes along. Choosing a justice who subscribes to one or the other of these views is thus as intensely political a decision as we can make.
Woodrow Wilson most clearly articulated this choice. He dismissed the Constitution as a relic of a bygone age of wigs and knee-breeches, suitable enough for the uncomplicated eighteenth century, but now, with its clunky checks and balances, an intolerable impediment to efficient government. The modern era is too complex for self-government by ordinary citizens, as the Founders supposed possible. It requires a much bigger, more active, more powerful government than they conceived — government by highly educated, specially skilled experts, scientifically and disinterestedly administering public matters in the public interest. And the changed times that call for so changed a government also call for “living political constitutions [that] must be Darwinian in structure and practice,” allowing modern government to adapt promptly to changing twentieth-century conditions by means of “more liberal, not to say more lax” Supreme Court decisions, made with “boldness and a touch of audacity,” the professor-president declared. After all, wasn’t it right, both practically and morally, to be “progressive?”
It was only when Franklin Roosevelt entered the White House that Americans saw just what kind of audacity Wilson had in mind. When FDR kept trying to create executive-branch agencies that would control vast swaths of U.S. economic activity, the Supreme Court kept blocking him, ruling that the Constitution’s Commerce Clause gave the federal government power to regulate interstate commerce, but not commerce within a single state. Every time FDR’s lawyers trotted out a new, sophistical argument as to why, for instance, a strike at a single plant in a single state would jeopardize an entire national industry and perhaps the whole U.S. economy, as the flap of a butterfly’s wings in Japan is said to affect the weather in America, the justices swatted them down. But when FDR threatened to circumscribe the Court’s power and to pack it with left-wing judges, the nine justices folded, allowing the president to set up the vast panoply of New Deal agencies with authority to make rules like a legislature, adjudicate supposed infractions of them like a judge, get private papers and inspect private premises without a judicial warrant, and assess penalties without either a grand or a petit jury to protect the citizen. And the self-gelded Supreme Court allowed this trampling of the Bill of Rights’s protection of the individual and the Constitution’s separation of powers — powers that could not legally be delegated to any gimcrack “agency” — without a peep.
FDR recognized, with characteristic insouciance, that he had erected “a ‘fourth branch’ of Government for which there is no sanction in the Constitution.” From that day to this, the unconstitutional Administrative State has swollen in size and power. It is only recently, when such bodies as the Environmental Protection Agency or the Securities and Exchange Commission or the Federal Communications Commission have made rules that glaringly have no basis in the consent of the governed and look like raw tyranny, that conservatives and civil libertarians have cried foul.