This column by ACRU Senior Legal Analyst Jan LaRue was published February 9, 2016 by American Thinker.
Considering how little the Supreme Court has been mentioned in election debates, a space alien might conclude that it’s the “least dangerous” branch of government.
A Gallup poll released on October 2, 2015 indicates that 50 percent of Americans “disapprove of the way the Supreme Court is handling its job,” a drop of 12 points since 2001.
A CBS News/New York Times Poll conducted from June 10-14, 2015 asked 1,007 adults nationwide:
“In general, do you think the current Supreme Court justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?
- 75 percent responded: “personal, political views”
- 16 percent responded: “just legal analysis.”
With those results and the likelihood that the next president will appoint two or three justices to the Court, it would be refreshingly relevant to hear a debate moderator ask the following of candidates:
“Let me quote Alexander Hamilton from Federalist 78, and then ask each of you to respond to two questions”:
‘Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.’
“Questions: Do you think the judiciary is the ‘least dangerous’ to our constitutional rights, and what are your criteria for choosing nominees to the Supreme Court who will not “annoy or injure” our rights?”
There were no such questions during the three-hour ABC News New Hampshire Republican debate Saturday night, even though numerous constitutional issues were discussed.
Eminent domain was mentioned 20 times during a back and forth between Donald Trump, who tried unsuccessfully to use the process to take an elderly widow’s home in order to turn it into a limousine parking lot for his casino in New Jersey, and Jeb Bush, who criticized Trump for abusing the process.
Nobody pointed out that Trump might win if he tried again because of the Court’s disastrous Kelo v. New London decision in 2005. Five justices rewrote the Constitution’s eminent domain clause, allowing private property to be taken for private use because increasing jobs and tax revenue benefits the public.
Marco Rubio answered a question about “same-sex marriage” without mentioning that the Court discovered the heretofore unknown “right” in the 14th Amendment 147 years after its ratification. Nobody mentioned that Justices Ruth Bader Ginsburg and Elena Kagan had displayed their personal policy views by officiating at such ceremonies while cases on point from four states were on a direct path to the Court.
Abortion was mentioned nine times, without a peep about the Court creating the “right” out of vapors and emanations inside the heads of seven justices in 1973.
Healthcare was a big topic. Nobody reminded listeners that Chief Justice John Roberts threw a spitball at the Constitution in his two opinions upholding Obamacare after pledging as a nominee that he would be like an umpire calling balls and strikes.
Hillary Clinton was asked a specific question about Court nominations during the Democratic debate on MSNBC on Feb.4. She promised that her nominees will have to be “loud and clear” that they will vote to overturn the Court’s campaign finance decision.
Only a few candidates have included the Constitution and Court appointments on the “issues” page of their campaign websites. Hillary Clinton recently said she had “a bunch of “litmus tests” for Court appointees.
The Constitution, as Thomas Jefferson argued, is not “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Unless the next president appoints nominees to the Court who have a record of commitment to text of the Constitution and limited government, we will not “keep” our republic as Benjamin Franklin cautioned at the close of the Constitutional Convention.
It deserves serious discussion in the next debates.