Here we go again. Those on the left accusing the Supreme Court of overt bias and one-sidedness when it comes to rendering decisions. It amazes me the number of people on the left who can’t differentiate between strict constitutionalism versus judicial activism. Further, when a decision doesn’t go the way those on the left wish, they immediately attempt to render the Court moot by protesting outside the homes of Justices or attempting to change the number of Justices on the court to achieve their desired result. This is not new and has been a tactic for those on the left for quite some time, going all the way back to the 1930s when FDR was president.
During that time, FDR foisted the New Deal upon the American populace, a piece of legislation that not only attempted to expand the reach of the federal government, but also created programs that extended the Great Depression and the rampant unemployment that accompanied it, despite the best efforts of school textbooks to whitewash its history.
The legislation was called the Judicial Procedures Reform Bill of 1937, sometimes referred to as the “court packing plan.” In short, the cornerstone of Roosevelt’s New Deal policies, the National Recovery Administration, was shot down by the Court with significant majorities (the Agricultural Adjustment Act was part of this as well). This did not sit well with the President as his center piece legislation was rendered moot. So, he went public with his intentions to pack the Court, raising the ire of the Court as well as public sentiment which was aligned against such a maneuver.
Roosevelt called for appointing 6 additional justices to the Supreme Court for every justice older than 70 years 6 months who’d served 10 years or more.
Congress never voted on the act, and the Court remained at 9.
Recently, with a spate of court decisions, the Supreme Court has adopted a stricter constructionist stance, meaning interpreting cases set before them based on whether or not the federal government has the power expressly (directly written in the Constitution). If not, the case is struck down. We saw this in the Dobbs case[1] the Chevron case,[2] as well as the recent case on presidential immunity[3].
What’s particularly frustrating for many is that since the 1960s under the Warren Court, activism from the bench was considered the norm, the Constitution being seen as a “living document” whereby the Court could change things by its decisions, and in essence, expand the role of the federal government away from the mandate created by the Constitution. Let’s be clear…the Constitution does have mechanisms in place to make it “living,” and they’re called the Amendment process along with Congressional law-making.
Both processes are arduous, by design, to ensure rigorous debate to arrive at a decision. This does not sit well with many as they’d prefer the decision be made post-haste, a stance often the bane of governments and citizens everywhere. Deliberation is a must, but in our now crushingly divided-by-ideology first nation, such deliberation is almost rendered moot.
No matter, the mechanism is there so arguments to the contrary are simply wrong.
The original intent of the Constitution was to create a wall between the states and the federal government with clearly defined powers for each. The Founder did not trust big government as wanted to ensure states’ rights would be preserved. That is the founding principal of our Constitution.
Second, judicial activism subverts the power of the states and creates a sort of oligarchy where federalism was to be. Again, this is not in keeping with the mandate of the Constitution at all, providing tentacles by which the federal government can grow its power—something it will do naturally if not kept in check. The Founders knew this which is why the 9th and 10th Amendments were created.
Some will argue judicial activism has its place, and that the Constitution, this 235-year-old document, is out of date and must keep pace with the times. Further, these same people suggest, incorrectly, it is a relic of the past and needs to be re-written to better reflect our non-slave owning past, arguing the document itself is a racist document which enshrines racism, a charge with no proof other than a twisted reading of the 13th Amendment among other passages.
Those who levy such charges demonstrate their willful ignorance of the Constitution itself along with disregarding such 19th century luminaries as Frederick Douglass himself, a man who not only praised the Constitution and its tenets, but the Founders who created it.[4]
Even those in our own government demonstrate repeatedly how little they understand our founding document and the limited role of the federal government as both parties tax and spend us into oblivion and expand the role of the federal government much past its constitutional mandate, all with the tacit and not-so-tacit approval of those from which the wellspring of governmental power emanates—the people.
The Supreme Court is attempting to right some of those wrongs, curtailing the power of the federal government as it adopts a strict constitutionalist bent, something the liberals on the Court rail against in their dissenting opinions. For the record, those liberal justices, Sotomayor, Brown-Jackson, and Kagan, rarely stray far from the activist philosophy, voting lockstep with each other while the strict constructionists, Roberts, Thomas, Alito, Barrett, Gorsuch and Kavanaugh have strayed and voted with the activists, demonstrating at least a willingness to consider other views along with keeping their constructionist bent.
Of the 67 decisions in the term that ended in June, the activist Justices voted together 51 times, while the constitutionalists voted together 37 times. Of the 20 cases decided 5-4, only 7 cases were decided by “ideological” lines. The constructionists voted at least once with the activists by the end of the term.[5]
The above also demonstrates something President Washington railed against and warned us of in his farewell address of 1796, that of party factions. He warned us to stay away, and we did not listen, our factional divide more pronounced than ever, and the nation suffering because of it, another reason to embrace the notion of strict constructionism.
The fact remains judges and Supreme Court Justices should not allow their personal or political ideology affect their decision making as such decisions should be rendered based on constitutionalism alone and the rule of law. The original intent of the Court was to be the least noticeable branch, working in the background to ensure the Congress and President did not subvert the original intent of the Constitution. Since the Marbury vs. Madison case wherein judicial review was granted, such is not the case, so the best we can hope for is interpretation on a strict constitutionalist bent and nothing else. Anything that replaces that is activism, and that is sandy ground, shifting and moving as the Court make-up changes, the stability of the nation on something less than a firm foundation.
Nations have fallen because of such conditions, and we should do all we can to avoid a similar fate.
[1] Abortion sent back to the states as a states’ rights issue…it did NOT make abortion illegal.
[2] Regulatory commissions do not have power to impose penalties…although it’s more than that. Here is the link.
[3] Which does NOT mean presidents can do whatever they want while in power, they’re immune…the decision, which I read in full states the president’s power is restrained by the Constitution, among other things. Here is the decision.
[4] This is contained in his famous July 4th speech, along with his rightful criticism of the nation not living up to its ideals, slavery still alive in 1852 when he gave the speech.
[5] https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/
