Sunday, October 2, 2016

When the Supreme Court Acts Like Politicians

The Supreme Court will start consideration of cases in its new term on the first Monday in October.  A Federalist Society panel previewing the Supreme Court's new term expected that SCOTUS will have a diminished case-load during the 2016-2017 term as it awaits confirmation of  Associate Justice Antonin Scalia's replacement. It  is assumed that the Supreme Court is avoiding some controversial cases to avoid having a 4-4 tie, which does not establish precedent and upholds the Appeals Court ruling.

There are several schools of thought concerning the vacancy on the Supreme Court.  If Democrat Presidential nominee Hillary Clinton (D-NY) wins the election but if the Republicans retain control of the Senate, there is good reason to believe that Obama designee Merrick Garland will be confirmed during the Lame Duck session.  Although Senate Majority Leader Mitch McConnell (R-KY) claims that Lame Duck sessions are not appropriate for SCOTUS confirmations, the thinking from the GOP may well be to go with the Devil they know rather than one which they don't know.

Some Democrats believe if they win both the White House and the Senate, then Hillary would want to install her own (presumably more progressive pick).  But some optimistic institutionalists hold fast to the notion that Mrs. Clinton would abide by the process and still push forward her predecessor's choice.  Either way, in such a scenario, it would be expected that there would be a lengthy evaluation and vetting process to achieve Senatorial Advice and Consent, thus keeping the evenly divided court well into the term.

Ass. Justice Anthony Kennedy
A more philosophical question is what should be the role of the Supreme Court.  A common rallying cry in Presidential elections is control of the Supreme Court.  Justice Scalia's passing in February levels an ideologically fractured SCOTUS (four liberals, three conservatives and Ass. Justice Anthony Kennedy), but with indications that progressives are itching to be more activist. 

Chelsea Clinton has mentioned on the hustings that openings the Supreme Court will allow her mother to fundamentally redefine the parameters of the Second Amendment.  

Most likely there would be no outright repeal of this fundamental freedom given by God, but it would take a narrow reading of the organic law and assert that this right is limited to organized militias. This would effectively make it a dead letter, like the Tenth Amendment.

So instead of being final arbiters of cases, the Supreme Court would act like a super-legislature, only they are unelected (thus unaccountable) and there is virtually no way to upend their ukases.

Sen. Ted Cruz Remedy to Judicial Activism and SCOTUS Ass. Justice Anthony Kennedy

Senator Ted Cruz (R-TX) while campaigning for President proposed having retention elections for the judiciary, as they do in Iowa.  That sounds more appealing on the campaign trail then it would be applicable in the Federal City. However, it does voice the frustration of many Americans who feel cut out of the governing process.  California twice approved referendums defining marriage (which was primarily a state issue), yet in Obergefell, the Supreme Court overturned the will of voters under a Right of Dignity interpretation of the Fourteenth Amendment and then expanded this right of same-sex marriage to all 50 states.

Two longer shot prospects not considered by judicial watchers are the possibility that Republican Presidential nominee Donald Trump (R-NY) might win and actually live by his promise to nominate conservative judicial candidates.  

The other way to remedy judicial tyranny would be limitations on Article III power.  While Congress can theoretically reign in lower courts, it is unlikely to do so. This would leave such reformation to application of an Article V Convention of States.  While the Article V safety valve for a Convention of States has been in place for 227 years, it has never been successfully invoked yet. But as more and more power is taken away from states yet they are saddled with the brunt of implementing dictates from the District of Calamity (sic), this may become a more feasible possibility. 

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