I get a daily notification or summary from the NY Times wherein they send me a featured article of the day. This day, a writer (German Lopez) who once wrote for Vox (a very liberal outlet) chose to write about the “too powerful Supreme Court”. In his piece, he lamented the fact the Court has so much power attached to its decisions. The assumption here is that he’s echoing the same sentiments as many, spurred on by the recent decision on Roe.
He mentions this power is wrong for a few reasons and needs to be amended. Among those reasons:
- Other nations put term limits on their justices so that new voices can be heard. The current life appointment has too much influence as that influence can stretch into a decade or more. Further, Justices can “time” their retirement in order to ensure a like-minded justice takes their place (as Breyer just did – although I”m assuming he was talking about Coney-Barrett replacing RBG when so many wanted RBG to retire. By the way, Breyer was pressured for the last few years to retire, but that pressure ramped up significantly this year).
- Gridlock in Congress means they won’t pass laws so it’s left up to the Supreme Court who, by default, makes law with their decisions, something strict Constitutionalist Justices reject, preferring to throw that decision making process to the states (10th Amendment).
- It’s too hard to overrule the Court’s decisions – he laments the Amendment process arguing its difficulty saying, “its only been done 17 times and none since 1992.”
- Finally, and here’s where he gives the game away Mr. Lopez states, “ The liberal vision for America requires passing laws to make major changes — already difficult in the political system. The Supreme Court adds another veto point, further bolstering a small-c conservative process.” A cursory knowledge of the Constitution and what it’s intended purpose is erases that thought.
As one can imagine, there are a number of problems with Mr. Lopez’ analysis. In the first place, the very reasoning for the Court’s lifetime appointment was to keep the Justices free from outside influence, the Founders understanding the ease by which corruption can infiltrate systems of Justice. No system is perfect, but upon reading the Federalist Papers, it’s quite plain the intent for lifetime appointments. Is the Court biased? It seems that way based on recent decisions, however, were these same accusations made of the Warren Court when many liberal decisions were handed down? Was there the same hue and cry when liberal Justices held the majority?
FDR didn’t get his way with the makeup of the Court in the 30’s when the Court determined most of his New Deal policies were unconstitutional. His solution? Pack the Court.
To Mr. Lopez’ second point – there is supposed to be gridlock. That was the design of the Constitution. The Founders believed in the minority voice being heard, which is why they outright rejected democracy. In a democracy majority rules with an iron fist – stamping out the minority at every turn. The Founders wanted the minority to be heard – to have a voice, thereby reducing the chance of revolution. The fact the Congress will not or cannot make decisions is the fault of Congress, not the Court. It is also the fault of voters who elect people on partisan basis, forcing said members to appeal to “their base” and making them unwilling to stand for what is right for the county – why take a stand when you might lose the next election?
Sunshine laws need to be abolished, something I’ve written on in the past. That would greatly help the current problem.
Yes, the amendment process is difficult – by design. If the amendment process were simple, we’d have a morass of a Constitution, subject to amendment every time Congress changed hands. Chaos would rule the day, not an orderly system such as we have now. There is a reason so many foreign nations find themselves in peril and revolt on a consistent basis, and it’s not because their constitutions are stable.
Finally, Mr. Lopez gives the game away at the end when he talks about the liberal vision needing to pass laws in order to make changes. It’s not about stability for the nation or what’s best for the nation – it’s about passing a liberal agenda with little to no resistance. This is the very notion the Constitution was designed for – prevent such actions and force deliberation so that the best ideas win out through argument, negotiation, and reason. It seems Mr. Lopez desires top down imposition without debate – something not remotely desired by either the Founders or the American people.
It would do Mr. Lopez well to study the reasoning behind the creation of the Constitution, and attempt to understand it rather than write superfluous articles so bent to the liberal extreme that he gives the impression he’d rather live under a dictatorial regime and not one in which debate and compromise is the goal.