The Stakes are Too High

            I’ll leave it to others to chronicle and critique the current feud between Senate Republicans and Senate Democrats about whether President Barack Obama can or should nominate someone to fill the Supreme Court seat formerly occupied by the late Justice Antonin Scalia.

            I don’t really much care about the Hatfield/McCoy-like food fight between Senate Democrats and Senate Republicans over who started the brawl or what any sitting or former Senator may or may not have said during any previous Supreme Court nomination process.  And while the ideological balance of the Court is clearly on the line, I’ve been around long enough to know that Supreme Court justices often grow and evolve in unexpected ways.

            What most interests me is why this fight is likely to become a key issue in the 2016 election.  It’s because we’ve allowed the Court to become too powerful even as we’ve lost trust in democracy.

            In Marbury v. Madison, the Supreme Court, in 1803, claimed for itself the power of “judicial review” to decide whether an act of Congress was consistent with the Constitution and to void that act if it was not.  The Court wisely refrained from using this power again until 1857 when, in Dred Scott v. Sanford, it used its power to undo the Missouri Compromise and set the nation on a path that led to the Civil War.

            Judicial review is a potent power.  For all practical purposes, it gives the Supreme Court the final say on almost everything of great significance.  Once the Supreme Court decides a matter on Constitutional grounds, its decision can only be reversed by a subsequent decision by the Court or by a constitutional amendment.

            The former is unlikely unless the membership of the Court changes.  That happens only sporadically and will happen less frequently as presidents, seeking to extend their influence well beyond their terms, appoint younger justices who, like Justice Scalia, can serve the court for 30 years or more.

            The latter, adopting new constitutional amendments, is implausible, given our fractured politics.  The Constitution permits Congress to propose constitutional amendments, but it takes a two-thirds vote in both the House of Representatives and the Senate to send a proposed amendment to the states. It takes the assent of three quarters of the states to ratify it.  The Constitution also allows two thirds of the states to call for a Constitutional Convention for the purpose of proposing constitutional amendments, but that’s never happened in American history.

            Constitutional amendments are rare.  Not including the Bill of Rights and the amendments that ended the Civil War, the Constitution has only been amended 14 other times in the 227 years since it was first ratified in 1789.

            The Supreme Court does need to have some power to void laws that are at variance from the Constitution.  The Constitution itself specifically denies the Congress the power to do certain things, as does the Bill of Rights and the amendments adopted at the end of the Civil War.  These proscriptions would be meaningless without a constitutional court to enforce them against political majorities. 

            Likewise, the nation would return to the state of political chaos that prevailed prior to the adoption of the Constitution if the Supreme Court had no power to enforce the Supremacy Clause against the states.

            But those powers should not allow the Court otherwise to substitute its judgment for that of duly elected legislators regarding matters clearly entrusted to them.

            When a five-member Supreme Court majority has the power to undo the will of the people on policy matters that ought to be within the control of the people and their elected representatives, the stakes of controlling the ideological balance of the Supreme Court are too high.  The possibility of losing a major policy battle in a forum not easily overruled or correct is too costly.  And that is what energizes this fight.

            Of the next Supreme Court justice, we should demand a healthy respect for the actions of the two political branches and of the states.  Because I believe that large majorities would demand a legislative continuation of the status quo on abortion, women’s rights and gay rights, I would accept a justice who would vote to overturn Griswold v. Connecticut (privacy), Roe v. Wade (abortion) and Lawrence v. Texas (gay rights) and but also to overturn Citizen’s United v. FEC (campaign Finance), Shelby County v. Holder (voting rights) and Chief Justice Roberts’s nonsensical attack on the Commerce Clause and on Medicaid in National Federation of Independent Business v. Sebelius.

            We are a democracy.  That means that it should be up to the people, through their elected representatives, to make policy, for good or for ill.  Major policy decisions do not belong in the hands of a five-member majority of a nine member Supreme Court, serving for as long as they want without ever being accountable to the people.  Instead, policy belongs in the hands of the people, voting for leaders who will enact the policies the majority wants.

            Does this sound dangerous? It is.  But when the people understand that they, and not an unelected Supreme Court have the final say over the nation’s future, maybe interest in the system and participation in it will improve.  If it doesn’t, the people will have no one to blame but themselves.