...Alexander Hamilton argued that the Court was the Constitution's "least dangerous" branch. The legislature "commands the purse" and "prescribes the rules by which the duties and rights of every citizen are to be regulated," he explained; the executive "holds the sword of the community." But the judiciary? "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
... the Court should not simply demand that Congress agree with the Court's judgment. On the contrary, it should ask whether Congress's judgment is reasonable — or fairly possible — in light of constitutional text and original meaning. If it is, the people's interpretation should prevail. Congress and the people, after all, are entitled to interpret the Constitution themselves.
The Court's very design makes it a threat to the vital separation of constitutional law and politics. And the Court's praxis over the past half-century has turned that threat into very real harm.
"There is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislature. Were it jointed with the executive power, the judge might behave with all the violence of an oppressor."
Article: Son of deceased Justice Scalia
https://www.foxnews.com/opinion
I’ve frequently been asked in the past few weeks what my father,
the late Supreme Court Justice Antonin Scalia, would think about the
contentious battle just waged over Judge Brett Kavanaugh’s nomination to the
nation’s highest court.
Would he have been surprised by the heated debate, political
maneuvers, protests, last-minute delays and uncorroborated allegations of
sexual misconduct that we saw during now-Justice Kavanaugh’s confirmation
process?
Although I don’t think my father (or anyone) could have
predicted the twists and turns of the past several weeks, I don’t think he
would have been shocked by the no-holds-barred fight over a Supreme Court
vacancy, either. He long ago warned Americans about the excessive intrusion of
politics into the judicial appointment process. And he explained that a large
share of the blame belongs to the justices themselves.
My father believed that a major reason the judicial confirmation
process has become so heated is that federal judges too often exceed the role
envisioned by our nation’s founders and usurp the power of elected
representatives.
Alexander Hamilton famously argued “that the judiciary is beyond
comparison the weakest of the three departments of power” and that “the general
liberty of the people can never be endangered from” the judicial branch.
But Hamilton qualified that claim. He said it would only be true
as long as “the judiciary remains truly distinct from both the legislature and
the Executive.” Hamilton agreed with the French political philosopher
Montesquieu, who warned that “there is no liberty, if the power of judging be
not separated from the legislative and executive powers.”
Maintaining that separation means limiting the role of judges.
My father explained that for most of American history, Supreme Court justices
recognized that the meaning of legal texts – including the Constitution – did
not change.
Judges understood that their job was to interpret that original
meaning – referring to tradition, history and precedent when necessary. When
dealing with laws and statutes, this approach is known as textualism; in
reference to the Constitution, it is called originalism.
But over the course of 20th century, judges began to think of
the Constitution as a “living document” whose meaning changed with the times.
That may seem like a reasonable idea at first; after all, the Constitution was
written in 1787 and a nation’s interests and priorities can change dramatically
over generations.
Shouldn’t the Constitution keep up with the times?
But in fact, the Constitution establishes democratic processes,
both in the states and in Congress, with the flexibility necessary to adapt to
changing circumstances. This can happen through new laws and through
constitutional amendments. That is, for example, how women earned the right to
vote: not by judicial decree, but through the 19th Amendment.
On the other hand, if the Constitution is a living document,
consider who ends up determining its new meaning: unelected judges with
lifetime appointments – men and women who are intentionally protected from the
will of voters at the ballot box.
As a result, many debates and compromises that should have
occurred in the political realm have been short-circuited by the judicial
branch for decades.
The most notorious example of this is Roe v. Wade, the Supreme
Court’s 1973 decision discovering a constitutional right to abortion. The
justices believed they were settling a contentious national issue. But they
were doing nothing of the sort; they were inflaming it.
When Americans realized that lower court judges and Supreme
Court justices were exercising their will rather than just their judgement,
judicial nominations became much more heated. My father didn’t like this
change, but he understood why it happened.
“A freedom-loving people respectful of the rule of law may be
expected to let lawyers decide what a constitutional text means; but they
cannot be expected to let lawyers decide what a Constitution ought to
say,” my father said.
Or as he put it in another speech, “no court can expect to
remain immune from severe political pressure ... if it assumes the role of
inventing solutions for social problems instead of merely applying those
solutions prescribed in democratically adopted statutory or constitutional
text.”
After all, lawyers know the law better than the rest of us, but
their value judgments are not necessarily superior to anyone else’s.
One way to help make our judicial confirmation battles less
polarizing, then, would be for judges to return to the more limited role they
had held for most of our nation’s history: applying laws and statutes according
to their text and interpreting the Constitution according to its original
public meaning, using history, tradition and precedent as guides.
This wouldn’t make every Supreme Court decision unanimous.
Judges can interpret history and tradition differently, and sometimes the
meaning of a text is ambiguous. Nor does it mean courts would never again make
a controversial ruling.
But if federal judges returned to the more modest approach our
Founding Fathers envisioned for them, they would be less likely to rule
according to their preferred policy preferences and more likely to leave
political decisions to our elected representatives.
This change in perspective is long overdue, but it will not
happen overnight. Right now, it is primarily only Republicans who see the value
in originalist judges like Brett Kavanaugh – and we saw the lengths to which
Democrats fought his confirmation.
My father devoted considerable time to delivering speeches
across the country and around the world explaining the advantages of
originalism and textualism. He knew that persuading people to this way of
thinking would help return the judicial branch to its proper status as what
Hamilton famously called “the least dangerous branch” and help subdue the
intensity of the nomination process.
Moreover…
https://www.thedailybeast.com/who-let-the-supreme-court-make-laws
Who Let the Supreme Court Make Laws?
The nine justices of the least democratic
branch of government have see-sawed back and forth on how far the Bench should
reach when ruling.
Gil
Troy
07.11.15 12:00 AM ET
iStockphoto
Yet another big Supreme
Court finale this June underscored the court’s supreme and arbitrary power
today. Cartoonists aptly sketch the supersized Supreme Court as dwarfing
President Barack Obama. Whatever you think of the Court’s gay
marriage or health
care decisions, one thing is clear: this is not the shy, retiring court
America’s Framers imagined. We have come a long way from Andrew Jackson’s
popular but probably apocryphal response to the Chief Justice’s defiant
decision invalidating a state law in Worcester v. Georgia (1832): “John
Marshall has made his decision; now let him enforce it!”
Knowing that they, like the
Pope, lack an army, and that nine sages appointed for life constitute America’s
least democratic branch of government, Supreme Court justices traditionally
operated with “judicial restraint.” The Supremes picked cases sparingly and
decided cautiously, deferring to the popular will as expressed by state
legislatures, the Congress, and the president. The Constitution does not
explicitly allow judicial review—declaring executive and legislative acts
unconstitutional. When Chief Justice John Marshall established judicial review
in Marbury
v. Madison (1803), he asserted the power theoretically. Only in
1810 in Fletcher
v. Peck did the Supreme Court first strike down a state law.
The disastrous Dred Scott case (1857)
confirmed the Supremes’ skittishness. This terrible decision branding all
blacks non-citizens overreached badly, triggering Northern anger and a
Congressional backlash by preventing Congress from prohibiting slavery in new
territories. Seven decades later, Chief Justice Charles Evans Hughes still
considered it the Court’s “greatest
self-inflicted wound.”
The Court next overstepped
during the Progressive era, when judicial conservatives repeatedly nixed
popular legislation protecting workers against corporations. In the infamous Lochner
v. New York¸ the Court prevented New York’s legislature from limiting
bakers’ working hours to 10 hours per day or 60 hours per week. Such laws
constituted “meddlesome
interferences with the rights of the individual,” the Court proclaimed,
violating the Fourteenth Amendment’s guarantee that no state shall “deprive any
person of life, liberty or property without due process of law.” Subsequently,
when denouncing “Lochnerism,” liberals rejected an overzealous Court wielding
this “due process” clause to protect corporations, who were considered
“persons.”
During the Great
Depression, Franklin Roosevelt’s liberal welfare state-ism intensified tensions
between ever-bigger government and the conservative court’s 14th
Amendment-based restrictiveness. Cries to “trust the people” and override
judicial restraint led to Roosevelt’s attempt to reorganize the federal
judiciary in his favor. Liberals disdained the “nine old men”
with lifetime jobs, trusting the presidency, the Congress, the state
legislatures, to expand government.
But the timely conversion
of a once-conservative judge who suddenly became the swing vote making for
5-to-4 votes in favor of New Deal laws stilled calls to quash the Court. (This
was called the “switch
in time that saved nine.”)
The Court leaped further
left under the placid Republican President Dwight Eisenhower’s Chief Justice,
Earl Warren, who redefined court activism as liberal, expansive, and
rights-oriented. In the 1954 Brown v. Board of Education school
desegregation game-changer, Warren confronted Justice Felix Frankfurter’s
suddenly anachronistic liberal fear of judicial activism. Seeking unanimity,
Warren used social science to sidestep Court precedents, especially Plessy
v. Ferguson (1896), the case legitimating separate but equal facilities. I
usually teach about Brown by showing students my (now-20-year-old) daughter’s
once-favorite black doll, “Sally.” Warren’s decision quoted research showing
that even most black girls preferred white
dolls to dolls like Sally, proving that separate education instilled within
African-Americans unfair—and now unconstitutional—feelings of inferiority.
Although desegregation
became broadly accepted, the Warren’s court judicial activism sparked
conservatives’ calls for “judicial restraint.” While there is something
deliciously democratic about nine judges interpreting a 228-year-old document
to protect minority rights in a free nation, that same document empowers just
five justices to revolutionize life for more than 300 million Americans, by,
for example, detecting a Constitutional right to privacy in the “penumbra”
emitting from the First, Third, Fourth, and Fifth Amendments. That privacy
penumbra became the basis of Roe v. Wade (1973), the divisive pro-choice
decision, guaranteeing decades of abortion fights that might have been avoided
if the more populist states or the Congress had decided.
In today’s partisan, fickle
times, both conservatives and liberals champion judicial restraint—when convenient.
Predictably, after the Reagan Revolution, a conservative court became more
activist to undo some Warren Court decisions and advance Republican interests.
In 2000, a Reagan-boosted majority narrowly decided that the Florida State
Supreme Court could not authorize another extended recount, essentially making
George W. Bush president in Bush v. Gore. Justice John Paul Stevens dissented,
blasting this “federal assault on the Florida election procedures,” and
declared, “Although we may never know with complete certainty the identity of
the winner of this year’s Presidential election, the identity of the loser is
perfectly clear. It is the Nation’s confidence in the judge as an impartial
guardian of the rule of law.”
Similarly, a recent New
York Times editorial
complained that, too frequently, today’s “conservative majority has
changed the law to disfavor the less powerful.” Breaking his promise of
“judicial restraint above all else,” Chief Justice Roberts’s court “has been
far too willing to undermine or discard longstanding precedent,” complained the
Times. Naturally, such distaste for judicial activism did not stop the Times
from declaring
the recent Obergefell v. Hodges decision “A Profound Ruling” that
“Delivers Justice on Gay Marriage.”
Once again, conservatives
repudiated judicial activism. In his 29-page Obergefell dissent, Chief
Justice John Roberts mentioned Lochner 16
times. Recalling how justices used to “elevate their own policy judgments
to the status of constitutionally protected liberty,” Roberts charged: “Today,
the majority … revives the grave errors of that period.” Indeed, five pro-gay
marriage judges read new guarantees of “dignity” into the penumbral rights of
privacy, invoking historians’
understanding of how marriage developed rather than social scientific experiments
testing girls and their dolls.
Wherever you stand on the
legitimacy of Bush’s presidency or gay marriage, champions of democracy should
stop championing judicial fiat over democratic decision-making. Shouldn’t the
Congress and the president have boldly passed a law or constitutional amendment
authorizing gay marriage? It is unfortunate that gay marriage entered into
legal legitimacy though the slippery Supreme Court backdoor rather than through
the more democratic, populist front door.
Or to put it another way:
If, in 1965, the Supremes sang, “Stop!
In The Name Of Love,” the justices should occasionally say to themselves
“Stop legislating! In the name of law.”
Moreover…
https://www.npr.org/2018/09/02/644185178/new-book-warns-of-the-supreme-court-s-power
Author
Interviews
New Book Warns Of The Supreme
Court's Power
September 2, 20185:16 PM ET
Heard on All Things Considered
With the nomination of Brett Kavanaugh
pending, NPR's Michel Martin interviews David A. Kaplan about his new book, The Most
Dangerous Branch: Inside the Supreme Court's Assault on the Constitution.
MICHEL MARTIN, HOST:
The Senate Judiciary Committee opens hearings
Tuesday into the nomination of Brett Kavanaugh to the U.S. Supreme Court.
Democrats have tried unsuccessfully to slow this down. They've asked to review
more documents relating to Kavanaugh's past work. They've also questioned the
propriety of confirming another Trump nominee when the court may have to rule
on sensitive legal matters involving the president.
With all this in the air, we're going to begin
our program today with a conversation about a new book out Tuesday. It's called
"The Most Dangerous Branch: Inside The Supreme Court's Assault On The
Constitution." The title is a play on Alexander Hamilton's assertion in
the Federalist Papers that the judiciary would be and indeed should be the
least dangerous branch of government. The author of the new book, David A.
Kaplan, argues that's not the case now and that Americans have come to accept a
court that repeatedly oversteps its role.
DAVID A. KAPLAN: Obviously, the president can
initiate war and send troops to faraway lands, and Congress can pass foolish
laws or pass no laws at all. But I think, in the long run, what the Supreme
Court has done in recent decades poses a more insidious risk to
self-government. I think the court, by inserting itself so often into
controversial political, social and political issues and largely overruling
what legislatures, what other branches have done, hurts its own legitimacy. It
wounds the other branches. It distorts presidential elections, like we saw most
dramatically in 2016. And it helps lead to the kind of circus we're going to
see this week on Brett Kavanaugh.
MARTIN: When did this start? I mean, was it
ever thus? I mean, you make the case that these justices are actually really
driven more by their political views to reach a certain conclusion. Was it
always that way, or did it start somewhere?
KAPLAN: You can see strands of it at different
points of the 20th century, but I think the important marker is Roe v. Wade in
1973, where the court issued a ruling declaring a constitutional right that, at
best, was controversial. I think it got worse. For example - I can't - you
can't discuss every case - is Bush v. Gore in 2000. Completely different
context - disputed presidential election - but I argue in the book they're kind
of symbolic bookends - that Bush v. Gore was the right's revenge for Roe v.
Wade. Let the court decide.
And Bush v. Gore was the classic instance
where Congress was designated in the constitution to resolve disputed
presidential elections. Congress had no role, and they didn't raise a peep when
the nine unelected, unaccountable justices across the street at the marble
temple decided the election. The Roberts court in the last ten years has only
accelerated the trend.
So whether it's on gun control, campaign
finance and Citizens United, voting rights under the Voting Rights Act of 1965,
the court has taken unto itself the role of resolving those policy disputes.
And I argue in the book no. In those cases, what they should have said is not
our job.
MARTIN: You have a lot of reporting in the
book about the personality dynamics on the court. Is there anyone on the court
who takes the position that you do - that the court is consistently
overstepping its authority? Has anyone attempted to intervene in this?
KAPLAN: They all preach restraint, but I think
the justice on the court who most closely behaves in the way that I would argue
was appropriate actually is Justice Breyer on the liberal wing of the court.
Justice Breyer has voted to uphold more acts of Congress than any other justice
on the court.
MARTIN: So you argue that this kind of
activism may have started with Roe, but then the conservative wing has - I don't
know what you want to say - taken the ball and run with it. I mean, I'm asking
you in part to speculate, but do you think if, say, for example, President
Obama had succeeded in having his nominee confirmed that perhaps it would not
continue as it does?
KAPLAN: Merrick Garland, I think, would have
been quite close to Justice Breyer. Obama picked Garland not because he was his
ideal kind of justice but because - for political reasons. In the 2016
presidential election, after Justice Scalia suddenly died, you heard liberals
and conservatives, Trump supporters and Clinton supporters both saying the next
justice could well determine American social policy for a generation or more.
All they were disagreeing about is who that justice would be. Nobody questioned
whether we ought to be giving that kind of power to one judge.
MARTIN: Honestly, Mr. Kaplan, it's almost like
you've expressed publicly and deeply reported and researched what many people
have been saying privately, which is that this branch has become another
political entity and that it exists to further the political agenda of a
particular group of people. So if citizens share your concern - that this is
not what the founders intended - what should they do?
KAPLAN: Well, I think citizens will say that
when it suits them, so that when the court constitutionalizes same-sex
marriage, you don't hear many supporters of same-sex marriage criticizing the
court taking the issue on. I do. Same thing with Roe v. Wade. And, on the other
side of the coin, if you support gun rights, if you think an individual has a
right to have a handgun in the house, then you're altogether thrilled when the
Supreme Court says you do instead of saying, I would have preferred to achieve
that victory legislatively.
MARTIN: One tidbit from the book that's stood
out for me - there were a number - but that Sandra Day O'Connor, the former
justice, the retired justice, unusually chose to retire for personal reasons,
expressed regret about her vote in Bush v. Gore.
KAPLAN: Well, she - in the later years, she
expressed regret. Maybe it was better for the Florida Supreme Court to have
handled the matter. But what I report in the book, her husband, John O'Connor,
shortly after Bush v. Gore, told a dinner table of guests at a charity function
that his wife knew that the decision was wrong when she made it in 2001. But
she did so because she wanted Bush to win. She didn't feel she could - that she
wanted to retire under a Democratic administration, and that meant siding with
Bush. She wanted to leave the court because her husband was increasingly ill
with Alzheimer's.
MARTIN: That is very disturbing that such a
consequential decision is made for really very narrow personal reasons. And
what should we conclude from that?
KAPLAN: I think what you conclude from that is
that, to the extent that these are human beings, it's all the more reason for
members of the court to be humble, to be restrained, to be minimalists, to be
gradualists. And I think the democratic branches - state legislatures, Congress
and the elected presidency, whatever you think about this president - I think
they suffer from that kind of court.
MARTIN: That is former Newsweek legal affairs
editor David A. Kaplan. His latest book is called "The Most Dangerous
Branch: Inside The Supreme Court's Assault On The Constitution." David A.
Kaplan, thanks so much for talking with us.
KAPLAN: Thank you for having me.
Copyright © 2018
NPR. All rights reserved. Visit our website terms of use
and permissions
pages at www.npr.org for further
information.
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produced using a proprietary transcription process developed with NPR. This
text may not be in its final form and may be updated or revised in the future.
Accuracy and availability may vary. The authoritative record of NPR’s programming
is the audio record.
https://www.heritage.org/crime-and-justice/commentary/has-the-supreme-court-become-too-powerful
Has the Supreme Court Become Too Powerful?
Feb 25th, 2016 2 min
read
COMMENTARY BY
Kim R. Holmes, Ph.D.@kimsmithholmes
Kim R. Holmes is the Executive Vice President at The Heritage
Foundation.
The stakes are high -- very high.
Finding a replacement for deceased Supreme Court Justice Antonin Scalia will be
a battle royal. But why should one government official's position be so
existentially important?
Yes, control of the Supreme Court hangs in the balance, but that begs the
question of why the court itself is so powerful. Could it be that the answer to
that question tells us something about our increasing inability to govern
ourselves as a free people?
Let's face it. Ever since at least the 1960s (and frankly even before), we have
increasingly allowed the Supreme Court to decide controversial issues we have
been unwilling to solve legislatively.
From civil rights to abortion to the issue of gay marriage, the high court has
ruled on key issues well outside the legislative process. New constitutional
rights were created out of whole cloth. If abortion couldn't be legalized at
the ballot box, or if gay marriage could not be made lawful by Congress or the
states, a majority of the Supreme Court -- a mere five people -- would step in
and do it for us. Using the power of judicial review, a new policy would be
imposed simply by redefining it as a constitutional right.
The practice of judicial fiat is so commonplace we seldom realize how radical
it is. We are, quite simply, losing our sovereign power to govern ourselves. We
have allowed the courts -- the Supreme Court, in particular -- to become too
powerful.
No single government official outside the president should be so important that
his or her replacement could shift the course and destiny of the nation. And
yet that is precisely the case with finding a replacement for Scalia. No matter
which way it goes, the next Supreme Court justice will decide the balance of
power of an institution that has arguably become more powerful than the
Congress and as powerful (at least) as the presidency.
This was not what the Founding Fathers intended. Sure, we live in a modern age
in which a lot of water has flown under the bridge of judicial review, but
that's precisely the problem. We have allowed those waters over time to become
a flood, swamping in some cases the high court's main purposes of safeguarding
our existing rights and preserving the rule of law.
The irony should not be lost on us that it has been primarily liberal activists
who have tried to hijack the court to get by judicial fiat what they could not
obtain legislatively. For all their professed love of "democracy" --
rule by the people -- they have resorted to tactics that actually overturn laws
passed legitimately by democratic legislatures.
The very insularity that the founders had intended to protect the high court
from the political passions of the times now serves those passions outright. It
is not uncommon for Supreme Court justices to decide cases based on what they
think (perhaps "divine" is a better word) the people or legislators
really want.
Perhaps based on opinion polls, for example, Justice Anthony Kennedy may have
thought he was merely delivering what the people wanted when he decided in
favor of gay marriage. But in doing so, he was overturning actual democratic
votes that over the past 10 years showed a 61 percent to 39 percent majority
against gay marriage when the issue had been placed on the ballot.
Should not actual votes count more than opinion polls?
As I explain in my forthcoming book, "The Closing of the Liberal
Mind":
"Ultimately judicial activism is harmful not only to constitutional
government but to democratic self-governance. When judges try to ram through
their policy preferences by contorting texts, abusing precedents, and making up
new constitutional rights, they undermine the credibility of both the
Constitution and democracy."
That is why, now more than ever, the next Supreme Court justice must be someone
who respects not only the original intent of the Constitution -- what Scalia
called "originalism" -- but the need to restrict the policy activist
role played by the court. Nothing less is at stake than our ability to govern
ourselves as a free people.
- Kim R. Holmes is a distinguished fellow at The
Heritage Foundation.
Originally distributed by the
Tribune Content Agency
The Supreme
Court’s Power Has Become Excessive
Larry
Kramer, president of the William and Flora Hewlett Foundation, is a
constitutional historian and the author of “The People Themselves: Popular Constitutionalism and
Judicial Review.” He is a former dean of Stanford Law School.
UPDATED JULY 6, 2015, 5:05 PM
“You must
vote,” I often hear, “because the next president will pick who sits on the
Supreme Court!” That such a statement should even be made tells us that
something has gone seriously wrong with our democracy. Certainly the Supreme
Court has a role in American government, but not the overblown one it has come
to play.
That five ideologically driven lawyers should have final say over
the Constitution's meaning should offend anyone who believes in democracy.
Liberals are
happy with the court right now, because they got some big wins in June. I
happen to like those outcomes, too, but I don’t understand why progressives
would overlook how the court has systematically done its best to undermine
everything they care about for the past 40 years — as it likewise did for the
first 150 years, until the Warren Court flipped things around for a short time
in the 1950s and 60s. Plus, the outcomes last week could just as easily have
gone the other way, and then what? Do same-sex couples think they had no rights
before the Supreme Court spoke, and have rights after only because five
justices said so? What if Justice Kennedy had woken up on the other side of the
bed the day the court ruled?
This is not a left/right point. It’s a point about how the meaning of our
Constitution should be finally determined. Is it really the case that the
fundamental law of the land, made by “We, the People,” depends on the
ideologically driven whims of five lawyers?
There is a place for judicial review in constitutional democracy, just not for
judicial supremacy. The idea that the justices have final say over the meaning
of our Constitution — that once they have spoken, no matter what they say, our
only recourse is the nearly impossible task of amending the Constitution or
waiting for some of them to change their minds or die or retire — ought to
offend anyone who believes in democratic government.
It rests on a
myth: that the court needs this overweening power to protect minorities. Yes,
the court has occasionally done so, but much more often it has done the
opposite. Time and time again, we have seen it take political movements and
legislation to get rights and make them secure. Virtually no progress was made
on race, after all, until Congress enacted the Civil Rights Acts of 1964 and
1965 — laws the Supreme Court has been working hard for years to weaken and
destroy. That the people who wrote and ratified our Constitution wanted or
expected the court to have such power is a fairy tale. They emphatically did
not fight a revolution to replace a monarchy with an oligarchy.
https://www.quora.com/Why-does-the-US-Supreme-Court-have-so-much-power
Answers
Benjamin
McLean, B.A. Philosophy, University of
Missouri–Kansas City (2015)
The American Founding Fathers believed that by making the
Supreme Court immune to the need for re-election, they would be placing it
above party politics and that everyone would equally desire to appoint justices
who would be honest, which in this context means they would strictly follow the
law.
Neither of those naive beliefs have turned out to be true.
Making the Court immune to re-election has made it the most partisan of all the
three branches and has caused one of the two major parties (the Democrats) to
prefer openly dishonest justices (which means they make up new policy based on
their own partisan prejudices) rather than honest ones. (who strictly follow
the law)
Decisions like Griswold v Conneticut, Roe v Wade and Obergefell
v Hodges took social issues which the American people were very active in
discussing and legislating about in their states, and forced controversial
policies on everyone against both the text of the Constitution and the will of
the people, taking away the people's ability to make these decisions in their
state and local governments. This ability to completely ignore the law, and
make arbitrary new laws makes the Supreme Court justices the true rulers of the
American system of government, beside which all other departments decision
making power is insignificant and temporary at best.
If you didn't want Republicans stacking the bench with honest
justices, then maybe you shouldn't have first stacked it with dishonest ones
and then killed the filibuster.
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