Thursday, July 20, 2017

Is it Time to Consider Restricting the Power of the Supreme Court?

Recently, a friend of mine posted a message on Facebook that he had sent to his Virginia Democrat senators Mark Warner and Tim Kaine, bemoaning the partisanship surrounding the nomination of Neil Gorsuch for the Supreme Court, saying: “Reflecting the opinion of the majority of those with whom I have spoken about this, I ask that you put partisan politics aside, do what is best for the country and demonstrate that you put country, and not party, first by voting in favor of the . . . imminently qualified . . . [Supreme Court] nominee [Neil Gorsuch].” [sic]

Likewise, a New Jersey Star-Ledger op-ed by Tom Moran lamented the decline of the 60-vote filibuster rule, which the Republicans eliminated for SCOTUS nominees in order to get Neil Gorsuch confirmed. The Democrats had previously eliminated the filibuster rule to get President Obama’s cabinet nominees confirmed. This so-called “nuclear option” is indicative, in Moran's view, of the general decline of civility in politics in Washington.

I see a number of reasons why SCOTUS nominations have become so politically bloody, the main one being ideology.

The importance of Supreme Court nominees grows in lockstep with the growth of the power of government to control our lives, businesses, and wealth. This has brought to the fore a fundamental and irreconcilable ideological conflict between two concepts of government; democracy fundamentalism based on the primacy of the ballot box versus the original American concept of constitutional republicanism based on the primacy of inalienable individual liberty and rights. The first leads to omnipotent and essentially unlimited government, the second to a government of limited powers. The result has been to politically polarize almost everything and make all politics personal. Hence, the political bloodbath that accompanies every Supreme Court nomination, each of whom is assessed based on which side of these diametrically opposed political philosophies the nominee seems to reside in regard to his interpretation of the constitution. (It’s often called a liberal/conservative divide, but it’s not that simple.)

The nomination process will only get worse until something fundamental changes, and Americans decisively choose either the statism of democracy fundamentalism or the liberty of constitutional republicanism.

That ideological battle aside, the stonewalling of Obama’s SCOTUS nominee Merrick Garland last year by the GOP and Neil Gorsuch by the Democrats is a reflection of just how much power Supreme Court justices have over the legal direction of the country and on the future of individual liberty and rights in America. The Garland and Gorsuch stonewall episodes raises an important fundamental question: Is it time to consider restricting the power of the Supreme Court?  In chapter 4 of his book “The Liberty Amendments,” constitutional scholar Mark Levin has proposed a Constitutional Amendment to do just that.

Consider that Justices Sonia Sotomayor (sworn in in 2009, at age 55) and Elena Kagan (2010, @ 50), and now Neil Gorsuch (2017, @ 49), can realistically be expected to serve for as long as 30 or more years. Add to that the fact that the Supreme Court has final authority over the constitutionality of legislative actions—and considering the ideological context in America today, the fundamental and irreconcilable ideological conflict between democracy fundamentalism based on the primacy of the ballot box versus the original American concept of constitutional republicanism based on the primacy of inalienable individual liberty and rights—and you can understand why Supreme Court nominations have become so politically contentious. With such absolute and long-lasting power in the hands of 9 individuals, and with the need to have to wait a generation or two to replace a justice, is it any wonder the nomination process is so contentious (to put it mildly) over otherwise eminently qualified judges?

Levin explains that the Founding Fathers rightly created an independent judiciary, but were also rightly worried about judicial tyranny overpowering the other two branches of the federal government. He argues that the Founders’ fear is now reality. So he proposes a Constitutional Amendment to . . .

  • term limit SCOTUS justices to 12 years.

  • give Congress 3/5 supermajority override power over all SCOTUS decisions, with no possibility of presidential veto, so long as Congress acts within 24 months of the SCOTUS decision (afterwhich the decision becomes final).

  • allow 3/5 of state legislatures override power over all SCOTUS decisions, also within the 24 month window.

  • stagger the SCOTUS terms into thirds in the same way as senate terms are staggered. Senators serve six year terms, with 1/3 of senators up for reelection every two years. Likewise, 1/3 of justices’ terms would expire every 4 years. In other words, every presidential term would give the sitting president the chance to nominate three new justices. Think about it. Currently, the chance for any president to fill a SCOTUS seat is a crapshoot. Under Levin’s amendment, every president would have an equal shot at filling the same number of seats. The only exception is if a sitting justice resigns, is impeached, or dies before filling out his term, in which case the sitting president would nominate a replacement for the remainder of the term.

Of course, the divisions surrounding SCOTUS are rooted in deeper divisions, as noted above.

The more fundamental problem in American politics is the advance of democracy fundamentalism based on the primacy of the ballot box, and the consequent retreat of constitutional republicanism based on the primacy of individual liberty. This has resulted in the increasing power of government over the individual. This, in turn, has steadily increased the importance of politics in our individual lives because of the negative effects of political power on our personal freedoms and rights to act on our own independent judgement—which in turn has increased the importance of SCOTUS reviews of the laws.

Underlying the democracy/republican division is an even more fundamental conflict: the clash between collectivism and individualism (and the related clash between collective “rights” and inalienable individual rights). These are philosophically irreconcilable positions, and the future of America as a free and progressive country depends on which of these diametrically opposed philosophical fundamentals wins over the majority of Americans.

The classic liberal/statist SCOTUS divide is a reflection of these deeper philosophical divisions. So Supreme Court nominations have become a leading consideration in electing a president. To be honest, being a radical individualist, my #1 consideration in the 2016 election was which candidate was least likely to appoint SCOTUS justices whose decisions would be harmful to individual rights.

Levin’s constitutional amendment would at least reduce the stakes involved in SCOTUS confirmations. With options, albeit difficult ones, available to overturn SCOTUS decisions without having to wait a generation or more for justices to die—and with each president having an equal shot at molding the Supreme Court to his liking—ideologically distasteful justices would be less hard to swallow. Our politics regarding SCOTUS nominations would have a chance to return to some semblance of civility, while at the same time reigning in the “tyranny of the judiciary.”

I don’t necessarily endorse Levin’s amendment. I'll have to give it more thought, and weigh what other constitutional scholars have to say about it. But Levin’s amendment provides much food for thought.

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