The Supreme Court
Joseph J. Ellis, author of many books on the nation’s founding era, wrote in the Wall Street Journal: “It is now received wisdom that perhaps the single most important power of the American president is the nomination of Justices to the Supreme Court. As a result of the debate over the nomination of Judge Brett Kavanaugh, both sides agree that the future direction of the American republic is at stake, because the next appointment will determine the political tilt of the judicial body that has become the ultimate arbiter of the laws under which we live.”
Ellis noted that the last thing the thirty-nine signers of the Constitution wanted was for The Supreme Court to become “supreme”. They expected that “status to belong to Congress.” For most of history, the Court rarely “stepped forward to redefine the political landscape in decisive fashion.” Two examples of the most “conspicuous occasions involved the great American tragedy of race”- the Dred Scott decision regarding slavery in 1857 and the Brown decision in 1954 regarding racial segregation. The “judicial revolution” created by the Brown decision set a liberal direction in court rulings for almost thirty years- “expanded the rights of criminal suspects, broadened the definition of speech and ….discovered a new right to privacy.” The latter led to a woman’s right to abortion, the Roe v. Wade ruling. The liberal wave was based on the “belief” that the Constitution was a “living” document to be interpreted on “evolving standards of justice.”
In 1985 “came the conservative wave”- dominated by the judicial theory of “originalism”, a theory that modern standards of justice “cannot take precedence over the values that prevailed when the Constitution was written and ratified.” The Court’s conservative majority overturned several “legal precedents” to rule in 2008 that the Second Amendment grants unlimited rights to own a gun and in 2010 to rule that restrictions on corporate political contributions were unconstitutional. Decisions of the liberal court aligned more with the Democrat Party agenda, and those decisions of the conservative court aligned more with the Republican Party agenda.
Ellis asked: “Where does that leave us? As citizens, we need to lower our expectations and realize the Supreme Court cannot perform the impossible and otherworldly mission it has been assigned in our time.” The Supreme Court was never meant to be “political”. Congress must perform its “constitutional task of shaping the direction of domestic policy, as the founders intended.”