We Should Not Be Having a War Over the Supreme Court

I do not mean to say that we won't have one, or that we could possibly avoid one. Where we are, a titanic struggle is all but inevitable. The sides have too much to lose. A political compromise would in principle be easy -- the Senate could advise the President whom they would find easy to confirm, and the President could nominate one of those people.

In practice it is impossible.

For the Left it is impossible because with the opportunity to create a 5-vote progressive majority bloc on the SCOTUS, the Left has in front of it the opportunity to dispose of the Constitution as an objection to their program. From now on, they would be able to simply wave away any suggestion that a policy or institution or regulation was unconstitutional because the bloc would vote to endorse it. Laws contemporary to the Constitution, which have coexisted with it for hundreds of years, will continue to be found to be unconstitutional even though neither the generation that wrote the Constitution nor any of its descendants to date have seen any conflict. It will be the end of the Constitution as a limit on government power, in other words, as long as that government power is exercised in a progressive direction.

For Republicans in Congress it is impossible because the rise of such a bloc would put an end to their major reason to exist. They would no longer be able to legislate as a party, because any legislation a Republican Congress passed would be set aside on appeal. So too Republicans in state houses, and indeed Republican governors. At a time when the Republican Party holds both houses of Congress and the vast majority of state houses and governors' mansions, this one person -- this one seat in one of three branches of government -- could effectively strip their entire power base of legitimacy. They could no longer proceed as the loyal opposition, raising procedural or legislative bars. They would be told what they could and could not do at every level of government, having their achievements thrown away and their concessions enshrined in Constitutional law.

Nothing could be clearer than that the Federal courts have become too powerful. Admittedly, this is an old argument for me. I've been arguing it probably since I've been writing here, certainly since 2006 (see "The Judiciary" here). The most important work we could do right now would be to strip the Federal courts, and the Supreme Court, of much of their authority. The Supreme Court's ability to amend the Constitution on the fly has risen at the same time that increasing diversity in the nation has made amending the Constitution legitimately, through Article V, more and more difficult to accomplish.

The Supreme Court has become much like the One Ring. Instead of trying to use that concentrated power to defend our position, we need to destroy the power lest it fall into other hands.

Win or lose this current fight over the seat on the Court, Governor Greg Abbot's suggested Constitutional amendments should become the #1 priority of the conservative movement. They are not extreme. They are not even radical. They impose only the kind of super-majority controls the Founders often invoked as guards against concentrated power.

It is in the interest of nearly every American to disperse this concentrated power, which is a threat to the peace and stability of the Republic. Unfortunately, I suspect the siren song of power -- of finally being able to force the other side to submit and obey -- will prove too strong.

The song is an illusion. No submission will be forthcoming. Beware that road that leads only to war.


MikeD said...

Pretty much spot on. The problem is (as I have said before) the Left truly doesn't see the danger. When you drive people to the point that there is no legitimate way to oppose your platform at the ballot box, all you leave them is the ammo box.

raven said...

You know, I don't want to force THEM to do anything- I just want to be left alone to pursue my affairs in peace. To work, to love, to play, to create. They, however, seem to be a meddlesome bunch, addicted to pushing and prodding and irksome behaviors, in virtually every sphere of life.

douglas said...

You may not be interested in Progressivism, but Progressivism is interested in you...

We (as a people) are learning that muttering 'well, that's wrong' but doing nothing else is death to all we hold dear. We'll reach critical mass soon, one way or another- either in political activism, or in revolt.

E Hines said...

It's much more direct. The Democratic Party, as epitomized by Obama, Clinton, Schumer, Reid, et al., are much too rankly dishonest to compromise with. No agreement with them can be trusted.

...we need to destroy the power [of the Supreme Court] lest it fall into other hands.

This makes no sense. The other hands the power will most assuredly and immediately fall into is the Legislative, which will be free to rule as it will on simple majority, without regard to any brake at all, much less a Constitution.

The Congress, on the contrary, needs to reassert its own Constitutional authority. Justices like Ginsburg and Roberts, who are on record as altering statutory law to suit their personal needs, and who insist that the Constitution is a living document that lives through judicial amendments from the bench rather than through Article V, have violated their oaths of office. That's not good Behavior, and so these are impeachable offenses.

Eric Hines

Grim said...

No, the power of the Federal courts to override the states as final arbiters. Congress has lost power too, but the states are the loci that need to be strengthened. The medicine that was right for slavery and its aftermath is too strong for what we now face. That much power, in a frame that can only impose one-size-fits-all solutions, is how we got here.

Dad29 said...

Eric, I would add that Trump shows the very same tendencies: dishonesty, un-trustworthiness, and a statist mentality.

Cassandra said...

What does "allow 2/3 of the states to override..." mean?

2/3 of the State legislatures? A direct referendum to the people (ordinary voters)?

Might I suggest a series of posts taking these suggestions one at a time and examining them? I think it would be instructive.

Grim said...

The precise terms would need to be established, either on a state-by-state basis or by the negotiating process necessary to get enough states to agree to amend the Constitution. In ascending level of difficulty, I'd guess it could mean any of these:

1) An act by a designated state official, e.g., the state supreme court's chief justice,

2) A referendum, which could be called at any time (and thus when the mood was high),

3) An act of the state legislature (which, in Georgia at least, would have to wait until the next legislative session if the 40 annual days were used up, unless the governor called a special session),

4) The passing of a law of nullification (which would require both the legislature and the governor to agree, or the legislature to agree so much it overrode a veto).

I suppose we could go through the proposals, and work them out in more detail.

Ymar Sakar said...

FDR packed the SC for a reason. They knew how it was done and they did it, they knew what to do and they had the Will and Ruthlessness to do it.

Their enemies think it's ice cream and peace time, however. They will be disabused of that notion that peace and elections can stop this train's free fall to hell. Not because I say so, but because the physical universe is so.

E Hines said...

Dad, you'll get no argument from me on Trump. One of the ones I supported had withdrawn, though, and another has no hope of getting the nomination.

Eric Hines