Justice in the Balance

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With the Left controlling, for now, Congress and the White House, they're planning an unprecedented power grab to take the Supreme Court, too.

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he nation’s liberal leaders, having recently secured a tenuous hold over two branches of the nation’s government but fearful of losing it in 2022 or even sooner, are mulling a plan to take over the U.S. Supreme

Court, too. Under normal circumstances, such a scheme would be thwarted by the happy reality that there don’t presently seem to be any vacancies on the court. But why trifle over details? When it’s your game, the reasoning goes, you can make up your own rules. In so doing, however, the plotters would By TIMOTHY R. SNOWBALL Litigation Counsel not only repeat one of the most egregious abuses of executive power in American history (see below), but the plan would destroy the very legitimacy upon which the court relies to perform its duties in our constitutional republic.

There is a big difference between following what the Constitution requires and trying to make the Constitution fit your preferred politics.

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SCOTUS a Unique Branch of the Federal Government

Alexander Hamilton (when he was only a Founding Father and not starring in a Broadway musical) once wrote in regard to the function of the then-newly proposed Supreme Court, that it “may truly be said to have neither force nor will, but merely judgment.”

Echoing this principle several decades later, Chief Justice John Marshall, largely credited with being the most important and influential justice in the court’s history, famously wrote that “(I)t is emphatically the province and duty of the judicial department to say what the law is.”

To review basic civics — which, for modern students, might be an entirely new concept — Congress makes the laws, the president enforces the laws and the Supreme Court decides the constitutionality of laws.

Whether a statute or regulation comports with the Constitution is not supposed to depend on politics — especially not based upon the political preferences of individual justices.

The Framers of the Constitution went out of their way to insulate the court from the passions and prejudices of politics. Their methods include lifetime appointments by the president, rather than term limits or direct election by the people.

In plain terms, the Supreme Court is supposed to be above the political fray. These anti-democratic features of the court are not flaws to be corrected; they are essential features to be safeguarded and handed on to future generations.

Members of the court are not “super-legislators,” tasked with divining the desirability of congressional action based on public opinion or their own political preferences.

No one elected the members of the court to make new law. Rather, the Supreme Court is specifically designed to exist outside the pressures of politics as the justices make decisions based not on what the law should be, but what the law actually is.

Rhetoric vs. Reality: How Justices are Appointed

While certain parts of the Constitution can be notoriously vague (for example, defining “due process” or “equal protection”), the specifics of how appointments to the Supreme Court are to be made are crystal clear.

The president possesses broad discretion to nominate whomever he or she chooses to occupy a vacant seat on the court.

And with the “advice and consent” of the Senate, those nominees are either confirmed or rejected. Rhetorical flourishes notwithstanding, there is no such thing as a “stolen” seat because no one party or political ideology owns it in the first place. The Constitution defines no limitations on whom the president may choose as a nominee, and he is answerable to no one but the voters for his choice.

Nor does the Constitution make provision for how and when the Senate is required to perform its oversight function.

It is usually conducted through a formal hearing, but institutional tradition is the only guide.

FDR Threatens to Unleash a Constitutional Crisis

Proponents of court-packing are quick to note that the Constitution does not require (or forbid) a specific number of justices.

Throughout American history,

in fact, the number of justices has ranged from six to 10.

The determining factor is that increasing (or reducing) the number of justices for narrow ideological purposes does not align with the true function of the court or reflect the principles of the Framers.

Not that this made any difference to Franklin Delano Roosevelt.

Much like current President Joe Biden, FDR was determined to exploit a crisis, in his case the Great Depression, to remake America in his preferred image.

This included the creation of a vast, unelected bureaucracy (the modern administrative state) charged with regulating the activities and lives of Americans in then-unimagined ways.

There was only one problem — many of the laws he supported were unconstitutional, and the Supreme Court had the bad form to say so.

Consequently, FDR came up with the perfect scheme — change the law to add enough liberal justices to outvote his opponents, then institute mandatory retirement ages for those who disagreed so they would be kicked off the court.

Fortunately, cooler heads pre-

vailed, and this proposed change was never put into effect. But it was not without consequences.

Rather than see the court’s legitimacy eroded, the members switched their positions and began to support FDR’s “New Deal” legislation, despite the clear unconstitutionality of many provisions.

But this “switch in time that saved nine” set a dangerous precedent. The court’s slide from a purely judicial body to one mired in politics had begun.

Modern Contoversies and the Supreme Court

During the 1960s and ’70s, the court became more and more involved in deciding cases concerning high stakes social issues, like the constitutionality of abortion. Consequently, the ideological makeup of the court became of paramount concern for liberal activists.

Heaven forbid the justices decide a preferred law or activity in a manner did not comport with the Constitution. Where ideology and the Constitution are concerned, the Constitution must give way.

Going forward, the dividing line for considering new appointees to the court would turn on one major consideration.

Not based upon the nominees’ experience or other qualifications, but how a given justice interpret the Constitution whether those interpretations would it support outcomes the liberals supported.

Never mind that interpretative methods like textualism or originalism (favored by conservatives) yield most restrained and consistent results in line with the intentions of the Framers.

Liberals want the Constitution to be interpreted according to what they think is the “purpose” of a given provision, with the only limitation on the purpose being the scope of their own social aspirations and political goals.

And so, we can observe a major shift in the confirmation process for new justices since the late 1980s up to the present day.

Instead of receiving widespread support from across the aisle based on actual qualifications and no matter the political party of the president (the usual course of events for the majority of history), the confirmation process has now devolved into a public catfight in which no unsubstantiated charge is too outrageous to make, points are counted and reputations permanently and irreparably damaged.

Where Do Things Stand Currently?

In a historic term, President Donald Trump successfully appointed three new members to the court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. But the liberals in Congress have vowed not to let these constitutional and entirely legitimate appointments go unchallenged.

Instead, they propose to destroy the Supreme Court in order to “save it.”

This cannot be allowed to happen.

The late Justice Antonin Scalia once described a particularly notorious legal test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried…”

This metaphor also works for courtpacking proposals.

The very idea that a justice’s rulings can be predicted by examining his or her presumed politics should be offensive to both sides of the aisle, and just goes to show just how far from the Framers’ design we have strayed.

Thinking of justices in terms of their political preferences gets it exactly backward.

The entire point of interpretative philosophies like textualism and originalism is to specifically limit the ability of justices to substitute their own preferences for what the Constitution requires. This is the exact opposite of liberal “purposive” schools of thought, which seek to subvert the law to the preferences of unelected (and likely elderly) justices, substituting their will for the will of the people.

In our republic, political power does not rest with the court, the president, or even the Congress. It resides with the people. And it was the people who instituted the Constitution to restrain government from subverting their lives and liberty.

This vital bulwark against tyranny applies with as much strength now as it did in 1787.

Contrary to new and old courtpacking schemes, the further intrusion of politics into the Supreme Court is not a goal to be pursued, but an aberration to be avoided and corrected.