Tag: judicial philosophy

Victorious ACB

The Portly Politico3 Comments

Last night the Senate confirmed the nomination of Amy Coney Barrett to the Supreme Court, thus filling Ruth Bader Ginsburg’s vacant seat.  Conservative constitutionalist Justice Clarence Thomas swore in Barrett, a symbolic gesture of the new justice’s constitutionalist credentials.

It’s doubly significant that Barrett’s confirmation comes just a week before Election Day, which is next Tuesday, 3 November 2020.  Nothing speaks more powerfully to conservatives about the importance of the Trump presidency than the President’s three conservative appointments to the Court.

ACB seems to be the most conservative of Trump’s appointees yet, which is a major victory for the Right.  Replacing the arch-progressive RGB with a conservative Catholic mother of seven should energize even the logiest of Republican squishes to pull the lever for Trump next Tuesday.

Recapturing the Court from progressives has been a conservative fantasy since at least Roe v. Wade, and really even earlier.  It’s taken anywhere from fifty to eighty years for conservatives to hold a decisive majority on the Court—easily a lifetime of patient political campaigning and faithful prayer.

With Democrats threatening to pack the Courts if they win the presidency and Congress, conservatives can’t rest on our laurels just yet.  We’ve got to get Trump reelected next week—and Republicans to take back the House and retain the Senate.

For South Carolinians, we must vote for Lindsey Graham next week, too.  I know he has not always been the most reliable conservative, but the Kavanaugh confirmation process red-pilled him big time.  He’s also the head of the Senate Judiciary Committee, and is responsible for getting Barrett—and dozens upon dozens of federal and appellate judges—out of committee and to a floor vote.  We cannot afford to lose that conservative influence at this critical juncture.

Justice Thomas is getting on in his years; we need a reliable conservative to replace him.  But there are progressive justices also approaching their expiration dates.  Justice Stephen Breyer is 82.  Respectable retirement can’t be far off for him.  Replacing Breyer would truly cement a conservative majority for a lifetime.

For now, congratulations to Justice Amy Coney Barrett.  Do us proud!

The-Surpreme-Court

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Anti-Court Packing

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As of right now, it looks like Amy Coney Barrett will get confirmed to the Supreme Court before the election, even if she’ll be seated under the wire.  A plurality of Americans want Barrett seated, according to a Rasmussen poll.  Conservatives shouldn’t take anything for granted; to quote Marcus Cato Censorius, “many things can come between the mouth and a morsel of food.”  But it does seem that ACB will soon be Justice Barrett, and America will be better off for it.

Of course, the Democrats are in high dudgeon, and are already threatening to pack the Court should they win the presidency and gain a senatorial majority this November.  Conservatives have anticipated this potential move for some time, but haven’t done much to stymie it.  Our focus has been, understandably, affixed on merely gaining a solid constitutionalist majority on the Court, but today’s Left will do anything to demolish a conservative Court.

Just as Democrats threatened to impeach Trump [thanks to jonolan for sharing that post with his readers, too —TPP] for making a constitutional appointment, they’re not seeking to dilute the Supreme Court, cheapening its gravity and significance, by adding additional justices.  Their solution is to expand the Court enough enough to make the potentially 6-3 conservative majority irrelevant.

After all, with the Democrats, if the rules favor your opponents, change them.  If the people don’t want your ideology, force it on them via judicial or executive fiat.

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SubscribeStar Saturday: The Supreme Court and Power

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Today’s post is a SubscribeStar Saturday exclusive.  To read the full post, subscribe to my SubscribeStar page for $1 a month or more.  For a full rundown of everything your subscription gets, click here.

The death of Ruth Bader Ginsburg eight days ago has opened up another power struggle in D.C.  Democrats have spent decades perverting the function of the courts from that of constitutional referee into that of constitution interpreter, a role that places the Supreme Court above Congress and the presidency.

The result is rule by nine unelected officials who serve for life.  Congress has gleefully passed the difficulty of legislative activity and the push and pull of debate onto the Supreme Court, trusting it to clarify anything Congress may have forgotten to write into law.  Presidents have passively executed Supreme Court verdicts, and even signed legislation they believed to be unconstitutional, on the premise that the Supreme Court would make the ultimate decision.

Thus, the Court has emerged as the dominant force in American politics—and morality.  Not only does the Court tell us what the Constitution really says—even if the Constitution doesn’t say it at all—it also tells us the moral judgments of the Constitution (thanks to Z Man for that insight).  Thus, every cat lady and box wine auntie in America bemoans the death of RBG, their symbolic stand-in, who endorsed free and easy abortions and gay rights.

Now President Trump has the opportunity to shift the balance of the Supreme Court for a generation.  But will it be enough to reverse judicial supremacy and restore constitutional order?

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Imcheapment

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It looks like President Trump will make his Supreme Court nomination pick later this week, and that Senate Republicans will deliver the votes he needs.  Lindsey Graham, who is in a surprisingly tight race here in South Carolina, came out with full-throated support for confirming a nominee, even this close to the November election.

What came as a major surprise was Mitt Romney‘s willingness to vote for a Trump nominee.  He did qualify his support by stating that he intends “to vote based upon [the nominee’s] qualifications,” which still leaves open the possibility of his characteristic perfidy.  Even with Lisa Murkowski and Susan Collins demurring, that gives Senate Republicans some cushion in confirming the president’s choice.

Of course, the Left is in a full-scale, apocalyptic meltdown.  They’d turned Ruth Bader Ginsburg into a symbol for their preferred style of judicial activism, and saw her as a crotchety, sleepy champion for their pet causes.  Ginsburg never saw an abuse of judicial power she didn’t like, and was a guaranteed vote for the progressives on any case.

The prospect of replacing her with a constitutional conservative is the Left’s worst nightmare.  RBG’s refusal to step down into a peaceful (and, surely, lucrative) retirement during the Obama administration has not cost the Democrats—potentially—a reliably Leftist seat for probably another forty years.

It’s little wonder, then, that the Democrats are pulling out every trick imaginable to stall or prevent confirmation hearings, and to otherwise scuttle Trump’s eventual nominee.  That includes threats of impeachment.

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Trump Stands for Us

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My blogger buddy photog at Orion’s Cold Fire is enduring some bleak New England weather.  Apparently, the bracing cold and gale force winds have sharpened his already-considerable analytical skills, as he’s been killing it lately with his posts.

He’s written a post, “The Unique Value of the Trump Presidency,” which perfectly encapsulates what Trump’s presidency means to the forgotten men and women of this country.  photog rattles off a laundry list of reasons different kinds of conservatives might like Trump—his judicial appointments, his less interventionist foreign policy, his trade war with China—but hones in on the key reason Trump matters:  “… there is actually a much more important aspect to the presidency of Donald Trump that should be emphasized.  He doesn’t despise us” (emphasis photog’s).

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Judge Troll

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An amusing story from the 2018 elections:  it’s a humorous, if somewhat reckless, example of a conservative striking back with cheeky aplomb.

After losing to his Democratic opponent, Judge Glenn Devlin of Houston decided to release juvenile defendants, rescheduling their cases to the first week in January 2019, when his opponent takes office.

From the piece linked above:

A day after Judge Glenn Devlin of Houston lost his reelection bid, he released nearly all of the juvenile defendants who appeared before him, as long as they answered no when he asked if they planned to kill anyone.

Devlin, one of the 59 Republican jurists in Harris County who was replaced by Democrats, allegedly said: “This is obviously what the voters wanted,” when he released juveniles who have been charged with a wide range of crimes, according to ABC 10.

The trolling here is brilliant:  Democrats are ever-eager to excuse criminal behavior in an endless cycle of catch-and-release.  So, if the voters want Democratic judges, give them the logical outcome of Democratic criminal justice policies—hoodlums back on the streets.

 

 

SCOTUS D&D

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This past Monday night, President Trump nominated Judge Brett Kavanaugh to the Supreme Court, predictably sending progressives into apoplectic (and apocalyptic) fits of self-righteous virtue-signaling and white-knighting.  Naturally, Leftists realize their decades-long project of circumventing representative government through the courts might backfire—when you create an excessively powerful institution and lose control of it, you start to worry that weapon will be turned back on you.

There’s been a great deal of analysis since then of Kavanaugh and how his nomination might shift the direction of the Court.  I’m not steeped enough in the details to make a judgment call myself, though it seems that Kavanaugh is remarkably experienced, and interprets the Constitution fairly narrowly (in the sense that he’s not one to create “emanations of penumbras” of rights or legislate from the bench).

I’m a bit concerned that he’ll be too restrained, a la Chief Justice John Roberts, who disastrously upheld the Affordable Care Act twice, the second time largely on the grounds that the Court should avoid overturning what legislatures enact.  That’s a good impulse generally, but not when the plain language of the act states something contrary to what the Court rules, and the Court deciding that Congress “meant to write it another way” is a funny way of exercising judicial “restraint.”

Regardless, my sense is that Kavanaugh is a solid and safe pick.  I’d much rather have seen, say, Utah Senator Mike Lee get the nomination—there’s no ambiguity about his commitment to constitutionalism—but Kavanaugh might stand a better chance of surviving his confirmation vote (after a predictably theatrical bout of boisterous dissent from doomsday-speaking Democratic Senators).

But I digress.  In attempting to analyze the Supreme Court, Conservative Review‘s Joseph Koss has applied a nifty little model to try to make sense of where the Court has been, and where it might be headed with the addition of Kavanaugh.

Koss is quick to point out that he’s not completely satisfied with this model—he applies the classic Dungeons and Dragons alignment system (the nerd in me is rejoicing)—and that some justices don’t quite fit into one of the nine slots, but he explains his placements thoroughly and carefully.

Check out his analysis here:  https://mailchi.mp/ab9d22079504/supreme-court-alignment?e=0d04a04a52

He also invites readers to tell him how wrong he is here.

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What do you think, TPP readers?  Is Kavanaugh a slam-dunk pick?  A Washington-insider swamp creature sell-out?  A rock-ribbed conservative?  Leave your thoughts and comments below!

The Evolution of Judicial Supremacy – Judicial Review

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Last night, President Trump nominated Judge Brett Kavanuagh to serve on the Supreme Court to fill the vacancy left by the retirement of Justice Anthony Kennedy.  As such, I thought it would be germane to explore briefly the role of the Supreme Court.

Popular understanding of the Court today is that it is the ultimate arbiter and interpreter of the Constitution, but that’s not properly the case.  The Court has certainly assumed that position, and it’s why the Supreme Court wields such outsized influence on our political life, to the point that social justice snowflakes are now worried about Justice Ruth Bader Ginsburg’s diet and exercise regimen.

Properly understood, each branch—the President, the Congress, and the Court—play their roles in interpreting the constitutionality of laws.  Indeed, President Andrew Jackson—a controversial populist figure in his own right—argued in his vigorous veto of the Bank Bill, which would renew the charter of the Second Bank of the United States, that the President had a duty to veto laws that he believed to be unconstitutional.

Unfortunately, we’ve forgotten this tripartite role in defending the Constitution from scurrilous and unconstitutional acts due to a number of historical developments, which I will quickly outline here, with my primary focus being a case from the early nineteenth century.

The notion that the Supreme Court is to be the interpreter of the Constitution dates back to 1803, in the famous Marbury v. Madison case.  That case was a classic showdown between Thomas Jefferson and James Madison on one hand—representing the new Democratic-Republican Party in control of the executive branch—and Chief Justice John Marshall, a Federalist appointee, on the other.

The case centered on an undelivered “midnight appointment” of William Marbury to serve as Justice of the Peace for Washington, D.C.  The prior president, John Adams, had issued a handful of last-minute appointments before leaving office, and left them on the desk of the incoming Secretary of State, James Madison, to deliver.  Naturally, Jefferson and Madison refused to do so, not wanting to pack the judicial branch with any more Federalists, and Marbury sued for his appointment.

If Marshall ruled that Madison must deliver the appointment, there was a very real risk that the Jefferson administration would refuse.  Remember, the Supreme Court has no power to execute its rulings, as the President is the chief executive and holds that authority.  On the other hand, ruling in Madison’s favor would make the Court toothless in the face of the Jefferson administration, which was already attempting to “unpack” the federal courts through acts of Congress and the impeachment (and near removal) of Justice Samuel Chase.

In a brilliant ruling with far-reaching consequences, Marshall ruled that the portion of the Judiciary Act of 1789 that legislated that such disputes be heard by the Supreme Court were unconstitutional, so the Supreme Court could not render a judgment.  At the same time, Marshall argued strongly for “judicial review,” the pointing out that the Court had a unique responsibility to strike down laws or parts of laws that were unconstitutional.

That’s all relatively non-controversial as far as it goes, but since then, the power of the federal judiciary has grown to outsize influence.  Activist judges in the twentieth century, starting with President Franklin Roosevelt’s appointees and continuing through the disastrous Warren and Burger Courts, have stretched judicial review to absurd limits, creating “penumbras of emanations” of rights, legislating from the bench, and even creating rights that are nowhere to be found in the Constitution.

Alexander Hamilton argued in Federalist No. 78 that the Court would be the weakest and most passive of the branches, but it has now become so powerful that a “swing” justice like former Justice Kennedy can become a virtual tyrant.  As such, the confirmation of any new justice has devolved into a titanic struggle of lurid accusations and litmus tests.

The shabby treatment of the late Judge Robert Bork in his own failed 1987 nomination is a mere foretaste of what awaits Judge Kavanaugh.  Hopefully Kavanaugh is well-steeped in constitutional law and history—and will steadfastly resist the siren song of personal power at the expense of the national interest.