The Supreme Court And The Democratic Party (Op-Ed)

Image Credit: supremecourt.gov

By Michael DiMatteo [Special to The Tennessee Conservative] –

Since the latest spate of rulings by this iteration of the Roberts court, more and more accusations are being flung by those on the left that this Supreme Court, by its current make-up, is illegitimate.

Their stance is based on two ideas: First, President Obama was not able to put Merrick Garland on the Court during the last year of his presidency because the Senate, under Mitch McConnell’s leadership, refused to bring his nomination to a vote. The reason McConnell used was the precedent of not selecting a Supreme Court Justice during the year of a presidential election._¹ President Trump won (2016), and Garland was cast aside in favor of Bret Kavanaugh. 

The second reason Democrats rail against the legitimacy of the Court is purely political. Since Amy Coney Barrett joined the Court, the ideological makeup of the court has shifted from an activist Court to a more constitutionalist body, meaning the Court tends to view cases from a strict constitutionalist bent; does the case before it reflect what’s in the Constitution, or does it not? The Court’s makeup now (5 conservative justices, 3 liberal justices, 1 independent) means it is looking less to influence law with court decisions, and more to decide if the case before it violates the Constitution itself, essentially invoking the 9th and 10th Amendments (two of the most important but forgotten amendments in the document itself).

Historically, and this is almost canon law, liberal justices have attempted to change the Constitution through court decisions, dating all the way back to the most important case, the Marbury vs. Madison decision which gave the Court the power of judicial review. The decision ensured the Court was a co-equal branch of the government when, in fact, that was not the original intent. It was to be working in the background, unnoticed, only deciding if matters brought before it were in the Constitution or not.

Listen to the words of James Madison regarding constitutional interpretation: “The meaning of the instrument must be derived from the text itself.” ² Essentially, this means when the Court is to determine the constitutionality of a matter, it should only consider the exact words stated in the Constitution, not what some Justice “thinks” it means. 

Such a position is a radical departure from the liberal Justices currently sitting on the court or walking the halls of the Congressional building. Representatives, such as the leftist Alexandria Ocasio-Cortez, who know little about what is contained in the Constitution itself, rail that decisions not supported by the liberal block of Justice Elena Kagan, Justice Katanji Brown-Jackson, and Justice Sonya Sotomayor, are not only illegitimate, but that the court itself is little more than a reactionary body intending to drag the nation back into the Medieval warm period. Such comments not only betray how little those like her know what the document says, but even less about how and why this nation was founded in the first place.

We are a federal republic, not a democracy. Our Founders railed against democracy, knowing democracy becomes a tyranny of the majority over time. Their intent was to create loggerheads at every turn, forcing compromise so the minority could be heard. Debate was their cornerstone, compromise their mandate. Our federal government long ago exceeded its mandate as defined by the Constitution, and this Court is attempting to walk some of that back, returning power to the states and individuals, rather than concentrating it in D.C.

It should also be noted Madison believed if the states felt a dictum from the federal government was unconstitutional, they should also have the right to push back, to determine its constitutionality for themselves, something rarely, if ever, done without Court involvement. Nullification is considered only on matters of said law’s constitutionalism. Without court intervention, the Supremacy Clause³ remains in effect.

All this stands in stark contrast to the liberal faction of the Court as well as liberals throughout the country today. While political affiliation is not supposed to be part and parcel of judges and those in the federal judiciary, it is simply human nature for people to “take sides,” as this became quite evident by 1790 among the framers themselves, something George Washington warned of in his farewell address and of which we find ourselves hip deep. 

Liberals did not have a problem with the Court until they lost control of it. There was precious little harping on the ideological bent of the Court in the 1960’s and ’70’s under Chief Justice Earl Warren, the infamous Warren Court. Under this court, certain decisions were made that benefitted the population, such as establishing Miranda rights (Miranda v. Arizona, 1966) as well as creating the doctrine of the right to counsel (Gideon v. Wainwright, 1963). But it was the same Warren Court which decided Roe v. Wade, a decision that was not in keeping with the strict interpretation which Madison advocated.⁴

This is nothing new in the liberal world view of politics. When most of FDR’s New Deal was deemed unconstitutional, he attempted to “pack” the Court, adding justices that, in theory, were sympathetic to his views, thereby creating a court that would back his proposals. It was a dismal failure, and a black mark on his presidency. Mr. Biden, Ms. Ocasio-Cortez, and others are floating the same idea, an idea only given merit because of the current ideological make-up of the Court today. 

They supplement the notion of court packing by claiming the Court, at the current, is also illegitimate. There were criticisms of the Warren courts decisions, a Court considered the most liberal in American history, but no such calls to pack the court, or even disband it despite those decisions. There was no clamoring by those on the left when the Roberts court was of a liberal bent, until Justice Kavanaugh⁵ and Justice Coney-Barret were seated. Clearly, these calls are political in nature, and should be ended post-haste.

This Court is attempting to return our nation to its roots, where activism has no place in judicial matters, where states have the right to choose, and where meritocracy matters more than the superficial consideration of one’s skin tone or ethnicity. Let us hope they will continue to fulfill their mandate.

¹This was not without legitimate controversy, but despite the protestations, and the unseemly move, it was not without precedent: 1844, 1852, 1866, and 1968. In each instance, the circumstances were slightly different, but the precendent still stands.

² “Letter from James Madison to Thomas Ritchie (Dec. 27, 1821),” in Letters and Other Writings of James Madison, Volume 3, 228.

³Article VI, clause II of the US Constitution states: the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the “supreme Law of the Land”, taking priority over any conflicting state laws.

⁴It should be noted that the recently decided Roe case does not outlaw abortion. Rather, it returns the power of lawmaking regarding the procedure to the states, who are free to create their own laws regarding abortion.

⁵The open warfare on Brett Kavanaugh, the false and unverified accusations designed to thwart his nomination were nothing short of barbaric, similar in bent to the ordeal Justice Clarence Thomas survived and is continually battling today.