Getting A Pro-Constitution Court
July 13, 2012 by Chip Wood
A neighbor and I were discussing the ramifications of the Supreme Court’s decision on Obamacare a few days ago when he made the comment, “That was a really black day for America. Maybe the worst in many years.”
His remark got me thinking. Which was the more momentous date? When the Court issued its verdict on June 28? When the Patient Protection and Affordable Care Act was enacted into law and signed by the President in March 2010? Or was the most critical date November 2008, when a lot of gullible Americans accepted Barack Obama’s promises for “hope and change” and elected him President?
Of course, they are all important dates in history. But it’s pretty obvious, isn’t it, that the first and second would never have happened if it weren’t for the third? Elections have consequences. One of the biggest consequences of the next one is that whoever wins the Presidency will probably get to appoint two or three new members to our Nation’s highest court.
Think about it. Three current members of the Court — conservative stalwart Antonin Scalia, liberal dependable Ruth Bader Ginsburg and occasional swing vote Anthony Kennedy — will all reach their 80s during the next Presidential Administration. Assuming some or all of them retire sometime over the next four years, whoever is nominated to succeed them could change the Court’s complexion for decades to come.
As you know, a Federal judgeship is a lifetime gig. The average length of service on the Supreme Court is currently 25 years. But with nominees getting younger and younger and with longevity increasing, new appointees could serve for 30 or 40 years.
If you think Chief Justice Roberts had to turn logic on its head to find that Obamacare was Constitutional, just wait until you see what an even more liberal Court will allow. It’s hard to imagine that such a court would find any expansion of Federal power unConstitutional.
While I’m certainly willing to agree that June 28 was a bad day for liberty in this country, I can think of many others that were worse. In fact, in my humble opinion, it wasn’t even the worst Supreme Court decision I can remember. For that dishonor, we have to go back almost 40 years, when the Court voided the anti-abortion laws of 46 States in Roe vs. Wade. That decision (which came on a 7-2 vote), caused more death, destruction and controversy than any other ruling in my lifetime.
Another damaging day in judicial history was way back in May 1954, when the Court ruled (unanimously, by the way) in Brown vs. Board of Education that “separate but equal” educational facilities would no longer be allowed in this country.
Today, most of us would probably agree that separate facilities could never be equal. And that trying to use the police power of the State to keep races separate was a huge mistake. Segregation created some monstrous injustices at the time and a legacy of bitterness and resentment that has lasted to this day.
But in its decision the Supreme Court did much more than simply declare that separate educational facilities were inherently unequal. The ruling paved the way for a massive Federal takeover of education in the United States. It led directly to such insanity as cross-town busing, to achieve some dubious level of integration that was dictated by a Federal judge.
Until that time, it was generally understood that a Supreme Court decision was “the law of the case.” But with the Brown decision, it became “the law of the land.” The judicial branch of government had usurped the power of the legislative branch. The Court was issuing dictates that would never have been approved by Congress or the individual States.
At the time, there was an enormous amount of opposition to the Federal courts assuming these vast new powers. I remember helping distribute a powerful little book called Nine Men Against America. There were even calls for Congress to rein in the Court by limiting its authority or trying to remove some of its members.
One of the things that makes our system of government so remarkable is all of the ways that our Founding Fathers tried to limit the power of the central government. In school we were taught that the Constitution would not even have been adopted were it not for the addition of those first 10 Amendments known as the Bill of Rights. It’s been a long time, however, since any justice (or most politicians, for that matter) paid more than lip service to the 9th and 10th Amendments.
Remember hearing about all of the “checks and balances” the framers put in place between the three branches of the Federal government: executive, legislative and judicial? We know that the first, the executive, gets to appoint nominees to the Supreme Court (and other Federal courts). And that the second, the legislative, gets to approve or deny those nominations.
But Congress’ power over the judiciary doesn’t end there. Our Founding Fathers were determined to give the people’s representatives, the Legislature, additional ways to check the other two branches of government. One was the ability to declare some issues “off limits” to the courts, by voting to remove their “appellate jurisdiction.”
The other check that Congress was given over the other two branches of government was the power of impeachment — that is, the ability to present charges against members of the courts and even the President.
In the 1960s, when the John Birch Society launched a nationwide movement under the slogan “Impeach Early Warren,” many people weren’t even aware that the Constitution gave Congress such a power — or, for that matter, what it meant or how it would be exercised.
I don’t think Congress has ever voted to impeach a member of the Supreme Court. Bill Clinton was the first President since Andrew Johnson to even have impeachment charges leveled against him.
At the time, I questioned whether lying about a tryst with an intern approached the level of misconduct that our Founding Fathers envisioned before a sitting President would be impeached. A majority of members of the House must have agreed, because Smilin’ Bill wasn’t charged. (What he no doubt heard from Hillary when she got him alone is another matter entirely.)
What are the chances that Congress will use either of these Constitutional remedies to rein in the Supreme Court? Pretty darned close to zero, I’m afraid.
That means if you want to see more pro-Constitution decisions from the Supreme Court, you’d better make sure the next appointees share your appreciation for our founding document. Otherwise, we’ll just get more justices whose oath to uphold the Constitution means as little to them as the one Barack Obama took obviously means to him.
In other words, if you want to change the Court, you’d better begin by changing the guy in the White House.
Until next time, keep some powder dry.
Corrected: Original stated Andrew Jackson, not Andrew Johnson, had impeachment charges brought against him.