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.

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. 

Pondering Donald Trump's Present Pro-Life Pitch

 Fox New's  Bill O'Reilly used a viewer submitted question to press his personal friend Donald Trump about to name one specific thing Trump would do to protect the sanctity of life
Trump as the the presumptive Republican nominee proffered the so called No Spin Zone some soothing sentiments to pro-life partisans by claiming that he would appoint pro-life judges, but not necessarily commiting to overturn Roe v. Wade (1973).  Huh? How does that work?

Of course, the Trump's unequivocal utterance does not square well  with Trump's track record, even during this Presidential campaign.  Trump made headlines in late March when he mused that women having abortions should be punished.  Of course, this was one of only four different abortion utterances in one day, which eventually extended to changing the GOP party platform to allow more exceptions. Moreover, how does Trump's latest claim comport with his repeated assertions that Planned Parenthood does great things for women's health.





Trump spun the sanctity of life question into picking pro-life justices for Supreme Court nomination.  It would seem that made Trump's earlier idea of appointing his abortion rights sister who is a judge to the nation's highest court inoperative. If O'Reilly really did not want to be spun, he should have followed up on Trump's vetting process for appointing "conservative, pro-life judges", especially since Trump waffled on overturning Roe v. Wade.  To legally drill down, clarification is necessary to discern if there is a right to privacy embedded in the Bill of Rights and applied to the states.

In prior pressers, Trump opined that same-sex marriage is the "Law of the Land".  Well, Justice Kennedy's opinion on the same-sex marriage in Obergefell v. Hodges (2015)  is premised on a newly concocted "right to dignity" that reads things into the Bill of Rights via the 14th Amendment. As Trump was squishy about overturning Roe v. Wade which enshrined the judicial activist practice of forcing federal will upon states concerning matters of prior state jurisdiction, the same-sex marriage case law is directly relevant.

From a culture war standpoint, it is easy to see Trump's flip-flop on the Transgendered (well, actually transvestites or those claiming gender fluidity at a given moment) to use the opposite sex bathroom. The Trump Town Hall pronouncement is that North Carolina's bathroom bill hurt business and ought to be rescinded.  As Attorney General Loretta Lynch made clear in suing the State of North Carolina for respecting traditional public facility proprieties, Transgendered Bathrooms has been elevated into a civil rights issue, reading gender dysphoria into the 1965 Civil Rights Act. Once again, understanding the judicial philosophy of a hypothetical Trump Administration's judicial vetting would be instructive. Otherwise, voters are just being played and the Deal Maker in Chief could bargain with his cronies.

First Lady Senator Secretary of State Hillary Clinton (D-NY) has made clear that she wants to strengthen pro-abortion rights under the guise of women's health.  Trump's laurels to Planned Parenthood, his penchant to flip-flop, his eagerness to cut deals and populist proclivities informed by New York Values really does not give comfort that Trump's pro-life rhetoric will become reality.

While it is quixotic to be a one issue voter, especially on anti-abortion issues.  But Trump's word seems to be worth little on fundamental issues.  Moreover, when Trump was asked what he would do specifically, he relied on labels "I'd appoint conservative, pro life judges" but won't bother with the details of reversing Roe v. Wade.