Yet more evidence that this is not the Supreme Court intended nor envisioned by the founders

MinnPost illustration by Jaime Anderson

Linda Greenhouse, the long-time Supreme Court watcher of the New York Times, had an excellent op-ed in yesterday’s Times about the increasing politicization of Supreme Court appointments and confirmation. The headline and subhead asked (and answered), “Are We Now Electing Supreme Court Justices? Sure seems like it, from watching the TV ads for and against Brett Kavanaugh.” Read her whole piece here. It’s a great overview of how the most recent developments in vetting and then promoting for ratification, Supreme candidates.

The answer to Greenhouse’s headline question is pretty obviously “yes.” The names of the justices don’t appear on any ballot, ever. And they serve for life. And they wield pretty huge power for unelected officials in a democracy. And, nowadays, a great priority is put on appointing young ones who will serve for decades beyond any political accountability.

In addition, we now have presidents who run for office making not-even-thinly-disguised promises to appoint justices who will rule certain ways on certain matters, the most prominent current matter being the future of Roe v. Wade.

Trump (who used to be pro-choice on abortion, but evolved) made a campaign promise to get rid of Roe, in the most direct way possible, by appointing new justices who would vote to overturn it. I don’t believe there has ever been a presidential candidate who so clearly and candidly promised to use a litmus test on Supreme Court nominations to achieve such a result.

In one of the debates, after Trump had made this promise, Hillary Clinton was asked to respond, and she simply said “I’m pro-choice,” but was more circumspect about promising to use the presidential power of appointment to protect Roe. Her circumspection was a dying vestige of the old pre-Trump norms. According those old norms, a president is allowed to have a position on such a matter, but wannabe Supreme Court justices are not, except to use lawyerly tools to understand what the Constitution might say about it.

Trump is a norms smasher, of course, so he came right out and promised to use his appointment power in a way to change the current abortion law of the land, namely the law according to Roe, so that it probably cannot be changed back, at least for decades.

I suppose the fate of Roe is the most sensational of all such Supreme-nomination-related matters, but there are many others. We’ve been heading down this path for decades. But it wasn’t that long ago that potential justices were not asked nor scrutinized for how they might vote on cases that might come before them.

For some time, presidents have tried to nominate highly qualified justices who shared their general views, in a vague liberal or conservative sense, but not to the point where their votes on specific matters were predictable.

The history of deeply vetting particular justices for how they might vote on particular matters is quite new. There are famous instances (Justices Earl Warren and David Souter are often mentioned in this regard, and the Souter case goes back only to 1990) when the president was surprised by how the appointee turned out. The norms have changed pretty fast since then, but what’s going on now is even newer. Presidents go to formerly unimaginable lengths to guarantee no surprises, especially on the highest profile matters like Roe/abortion.

Traditionalists find the newest norms alarming. I understand why. But I have my own quirky view that goes deeper. I challenge whether the authors of the Constitution intended for a body of unelected justices to have the power to make and unmake laws, in fact a power greater than that of the elected branches to make and unmake them. Marbury v. Madison, the early case in which the court first asserted this authority was a colossal power grab, in my view.

Thomas Jefferson had the same view, protesting against Marbury and later writing that: “[T]he Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

I’m with Jefferson, although I acknowledge that this ship has sailed.

In the matter of Roe v. Wade, it cuts both ways. Although I am personally pro-choice, the idea that something the Constitution can be interpreted by unelected non-legislators as creating a three-trimester analysis of whether and when a woman can make that choice has always struck me as – well as what Jefferson said above about the “mere thing of wax.”

But the latest developments give us a new absurdity. A president, whose job is also not to legislate, can use his appointment power over the Supreme Court to engineer a majority of unelected lifetime appointees, who can legislate matters in or out of the “evolved” Constitution, and put it beyond the power of the actual elected branches to alter. And the law created by the unelected justices is unalterable until enough of them die or retire and are replaced.

I say that nothing remotely like this was intended nor envisioned nor expected when the Constitution was written and ratified. And it’s not healthy in a democracy.

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Comments (9)

  1. Submitted by Ron Gotzman on 08/17/2018 - 12:32 pm.

    Can we agree on this?

    The abortion decision should have been handled through the legislative process not through the SCOTUS.

    • Submitted by Paul Brandon on 08/18/2018 - 09:26 am.

      Depends on whether a Constitutional issue is involved

      In Roe v. Wade the Court decided that it was.

    • Submitted by Kathleen Castrovinci on 08/18/2018 - 10:20 am.

      Prior to Roe v. Wade, THAT was the process…..

      States had anti-abortion laws, with few states making it legal, thus few women had access to choice. Even Birth Control was illegal.

      During the winter of 1959-1960, my mother was pregnant. She was sick those 6 months because of it. Her doctor, an Austrian Jew who escaped the Nazis, advocated in her behalf to the Ohio Legislature, that her life was in danger and that aborting the pregnancy was essential. He was rejected because Abortion, even to save her life, was ILLEGAL.

      During a horrendous winter storm ravaging Cleveland, my father out of town in late January, my mother screamed in terror. She was 6 months pregnant and sitting in a pool of blood. I was 7 at the time. I had to go next door and alert the neighbors to call an ambulance. She barely made it to the hospital after losing 4 units of blood. The baby boy she was carrying was a miscarriage . The autopsy showed the fetus was deformed and had Spinal Bifida. The toxins building up in my mother from that pregnancy was what was slowly killing her.

      Women, not Legislatures, are the ones to determine CONTROL over their bodies and destinies. To overturn Roe will cause women to take matters into their own hands prior to Roe. What would be next? Outlaw Birth Control too?

  2. Submitted by Paul Brandon on 08/17/2018 - 02:59 pm.

    Part of the problem

    is that when the Founders tried to envision a governance without a monarch they faced a daunting task. In a traditional monarchy such as Britain, or France before its revolution, the monarch provided a check on the parliament, with the judiciary often being a tool of the monarch.
    Under the constitutional system that the Founders devised, the President was to be literally an executive: one who executes the legislature’s laws.
    So we were left with a congress without a clear check on it, since the President’s power was largely determined by his prestige, which in Washington’s case was considerable. So I would posit that this is at least part of the reason that the Supreme Court (only hazily defined in the Constitution) became part of a tripartite check-and-balance system.

  3. Submitted by Kathleen Castrovinci on 08/17/2018 - 08:41 pm.

    Senate Republicans want to ram Brett Kavanaugh through fast.

    The future of Reproductive rights, Marriage Equality, Voting and Civil Rights, hang in the balance with a Justice who could change the complexion of this country.

    I am a Mother of an Adult daughter, 3 granddaughters. I will remain on the front lines of resistance to make sure my daughter and granddaughters maintain the right to choose, use Contraception, vote, marry who they love be it the same sex, etc.

    What Senate Republicans want is have little time to go over Kavanaugh’s many years of writings and Court decisions. These are the same Senate Republicans who vowed to hold up any Supreme Court nominee Hillary Clinton would have chosen had she won, but want all of Trump’s to go through without any objection by Democrats.

    This is not only HYPOCRITICAL, it is very DANGEROUS.

  4. Submitted by Dennis Wagner on 08/17/2018 - 09:51 pm.

    I would agree

    Seems quite a few of our justices have their mind made up before the case even comes to court, and many times their rationale is less than rationale. Simple example, the cake maker, they noted a judges discussion/comments were relevant to the case, but in Trump and his campaign rhetoric, it wasen’t relevant to the Muslim ban! They are way less than supreme, more like bought and paid for, no one needs look any farther than citizens united where Corporations were given person status. Can we say the word corrupt as a 3rd world country? Looks reasonable to me.

    • Submitted by Paul Brandon on 08/18/2018 - 09:29 am.

      Cake bakers was an anomoly

      The Court wrote the decision with great care so that it was limited to that specific case and was unlikely to set a precedent.

      • Submitted by Dennis Wagner on 08/20/2018 - 08:46 am.


        From this perspective looks more like another dot on the shmoo plot about how the religious right is being persecuted, while they politicize their and religion under their tax free status and make everyone else subsidize them, and now have the supreme court wiling to rewrite the laws to support that line of thinking, Hobby Lobby anyone? .

  5. Submitted by Brad Lundell on 08/18/2018 - 09:30 am.

    Old article you may find interesting

    There was a spirited debate on this topic back in 2005 on the pages of Dissent magazine, when Laurence Tribe and Jeremy Waldron reacted to an article by Mark Tushnet that criticized the increasing reliance on judicial review. Whether it’s due to the Executive Branch’s continuing pattern of expanding its reach (see Schlesinger’s The Imperial Presidency) or Congress’ seeming reluctance to grapple with pressing issues, the Judicial Branch seems to have a lot more thrown its way and appears more than eager to fill the breach.

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