Ask the Candidates What They Will Do About the Supreme Court

With the Supreme Court’s imposition of gay marriage nationwide and county clerk Kim Davis’ defiance all recent news, it is likely that constitutional issues will come up at this Wednesday’s GOP presidential candidate’s debate. This will be an excellent opportunity to explore the candidate’s views on the role of the Supreme Court. However, it would be unfortunate if the questions focus on the particulars of Ms. Davis’ case, or even the Obergefell decision.  Those they can too easily slip by with bromides. What they will look for in Supreme Court nominees is another useless question. Since Richard Nixon, Republican presidents have been saying they will only put forward nominees who respect the Constitution, and where has that gotten us?  That’s important, but clearly has not been sufficient.

Instead, we need to ask a deeper question. We need to know what they see as the proper constitutional role of the Supreme Court. Do we passively acquiesce in the Court’s decrees, deeming them the irreversible and absolute “law of the land” (see Donald Trump, Jeb Bush, John Kasich, Carly Fiorina, and Lindsay Graham), or is some resistance feasible (see Mike Huckabee and Ted Cruz)? 

For many decades, conservative legal scholars have argued that the modern Supreme Court has assumed far more power than the Founders ever intended it to have. They would have been horrified at the idea that five unelected and unaccountable judges can change the Constitution without any practical recourse for the people or their elected representatives.  The candidates need to be asked if they accept this modern post-World War II concept of judicial supremacy -- that the states and the nation’s elected officials must utterly acquiesce in the Supreme Court’s dictates. If they don’t, what do they propose to do to re-establish the original balance of power between the federal judiciary on the one hand and the people and their democratically elected representatives in the states, the Congress and the White House on the other?   

An Answers Cheat Sheet

Now, lest anyone claim that this type of question would just be throwing an obscure legal ‘gotcha’ question at the candidates, here is a handy cheat sheet with the possible answers.

I give up. The Supreme Court is the most powerful branch of the government. Their decrees, not the laws passed by Congress, are the supreme law of the land and must be obeyed without question.

Departmentalism. This view, well summarized here and here, holds that the executive and legislative branches are not inferior to, but rather coequal with the judicial branch. They are responsible for forming and following their own views on the Constitution. Although this view goes back to the beginning, the poster children for departmentalism are Abraham Lincoln and the first Republican Congress. They rejected the Dred Scott decision and acted in contravention of it. Dred Scott was at the most, as Lincoln argued in his first inaugural, binding only on the actual parties to the case. The courts are only supposed to decide specific cases, not dictate the entirety of the law. Departmentalism raises the prospect of creative tension between the unelected and the elected branches of government, which may be uncomfortable for a public used to the paternalistic certainties of judicial supremacy. However, I suspect that the Founders would say that such discomfort is a cost of self-government, well preferable to what they would have regarded as tyranny.

Jurisdiction Legislation. Article III of the Constitution says that the Supreme Court’s appellate jurisdiction will be “with such Exceptions, and under such Regulations as the Congress shall make.” Use of this power to limit the courts’ control over every aspect of our national life was proposed by Newt Gingrich in the last election. Sometimes bills will be proposed that limit judicial review, and Congress has done so to an extent in immigration cases. However, this power could be used much more aggressively to rein in a Supreme Court which has run amok.

A particularly potent application would be to limit federal judicial review of state laws under the 14th Amendment to cases involving racial discrimination. The 14th Amendment was enacted in 1868 to give the federal government power to protect the rights of the newly freed slaves against attempts by the southern states to limit their civil rights. However, almost a century later, Justice Hugo Black, a former Klansman, invented a theory that the 14th Amendment was intended to apply the entire Bill of Rights against the states. Firmly resisted by many scholars, most notably Black’s fellow justice Felix Frankfurter, the theory, known as “incorporation” of the Bill of Rights, largely prevailed on the Warren Court. For the history, see here pro and con. From Black’s anti-religious “wall of separation” decisions in the late 1940s up through Obergefell, the doctrine of incorporation has been the basis of most of the Supreme Court’s mischief in overthrowing state laws. While it was recently employed to protect gun owners’ 2nd Amendment rights against state gun control laws, the overwhelming majority of its applications have been to impose leftist political and social policies on the states and their people. Removing federal appellate jurisdiction for all cases except for race discrimination preserves the legacy of Brown v. Board of Education while preventing federal courts from interfering with a host of other state issues, thus preserving the diversity of state laws which once enriched our polity.

Amendment Reform. Both the application of departmentalism and limiting federal appellate jurisdiction over state laws unrelated to race could provoke strong opposition. Therefore, the solution to judicial supremacy most likely to succeed as a practical matter is reform of the process for amending the Constitution. Our Constitution is the most difficult to amend in the world. This was not its framers’ intention. Indeed, most of them (including George Washington) thought the ready availability of amendment to be its most important feature. The quick passage of the ten Bill of Rights amendments, as well as the 11th and 12th within a few years, shows that the Founders were not hesitant to refine their work. However, ours was the first written national constitution, and its framers had nothing to compare it to and realize that they had set the thresholds for amendment a bit too high. Nor could they foresee (although James Madison warned them) that their requirement that the states act through the unworkable mechanism of a convention to propose amendments would cut off half of the source of amendment activity, which was supposed to come from the states as well as the Congress.

Since Democrats as well as Republicans have amendment proposals that they want to put forward, a content neutral, purely procedural reform to invigorate the amendment process should actually be politically doable if it was sincerely promoted. This would make it realistically feasible for the people to reverse unacceptable Supreme Court decisions by amendment.  It would also open a path for other conservative amendments designed to restore limits on our over-bearing national government (such as Mark Levin’s Liberty Amendments, Randy Barnett’s Bill of Federalism, or even my own modest proposals).

James W. Lucas is an attorney and entrepreneur in New York City. He is author of Are We The People? How We the People Can Take Charge of Our Constitution and Timely Renewed: Amendments to Restore the American Constitution.  

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