Skip to comments.The Supreme Court is Not a Super-Legislature
Posted on 03/21/2017 12:45:09 PM PDT by ckinv368
Due to the unfortunate passing of Justice Scalia in February of 2016, the United States Senate recently began confirmation hearings for President Trumps pick to take his seat on the Supreme CourtJudge Neil Gorsuch of the 10th Circuit.
Judge Gorsuch has received almost universal acclamation from those on the Right. He is admired for his even temperament, his common sense, his dedication to originalism and textualism, and his belief that judges shouldnt employ an outcome based judicial activism. Despite being unanimously confirmed to his post on the 10th Circuit by the Senate in 2006, the Left is now opposing his nomination in a familiar, and largely unimaginative way.
Senator Chuck Schumer of New York, the new Senate Minority Leader, is leading the charge. Sen. Schumer attacks Judge Gorsuch on his judicial record, highlighting cases where the Judge refused to employ progressive judicial activism to reach a result he may have preferred, but that the law did not allow on its face. How dare the Right nominate a person who has made legally-correct decisions that had negative real-life implications? Sen. Schumer, and others on the Left, reason that if Judge Gorsuch does not share a penchant for social justice and socioeconomic empathy, he must be unfit for the Supreme Court.
In an article recently published in the Washington Post, Professor Brian Leiter of the University of Chicago Law School goes further, arguing that we should view the Supreme Court as nothing but a super-legislature. He states that the job of the Supreme Court has little to do with the dispassionate application of clear laws to clear facts, and that good judging demands . . . moral and political judgment of the kind exercised by a conscientious legislator. He argues that we should view the role of the Supreme Court much as we do the politicized legislaturehe believes its job is to pick outcomes based on political ideology and ideas related to personal and/or community morality. This, despite the fact that the Constitution clearly delineates the line between Congress (Article I) and the judiciary (Article III).
Professor Leiters view is consistent with the Lefts historic view of the role of the Supreme Court. When the Left wanted to exercise social justice in the absence of favorable law, Justice Douglas simply created penumbral rights that emanated from the Constitution, protecting formerly-illegal conduct, striking down laws, and creating a wide new swath of jurisprudence the Left could expand as its moral and political judgment saw fit. When President Obama wanted to enact his infamous universal health insurance mandate, the liberal wing of the Supreme Court (with the help of Justices Roberts and Kennedy) conveniently argued that it was not a controversial mandate at all, but merely a tax well within the bounds of Presidential authority to enforce. This, despite the bills own legislative history making clear the mandate was not, in fact, a tax in any form or fashion.
Simply put, the last 100 years of judicial history highlight a pattern where the Left creates rights, re-writes laws, ignores precedent when convenient, and strikes bold new social paths with no Constitutional backing, all in the name of progressive judicial thought. The Left has consistently picked judges and justices that are wed to the judicial philosophy of social legislation from the bench. And, from Professor Leiters article, it seems that the Left expects the Right to act in similar fashionif the Left is determined to create an outcome-based judiciary, the Right must be as well. Except, that is not at all how the Right views the role of the Federal Judiciary.
The Right views the Federal Judiciaryand especially the Supreme Courtas the ultimate arbiter of what the law is. Not what it should be, what it could be, or what it could be arbitrarily modified to cover. Judge Gorsuch himself stated that it is our job . . . to apply the law Congress did pass, not to imagine and enforce one it might have but didnt. Other conservative jurists, such as Justices Scalia, Thomas and Alito, have consistently recognized just that. A jurists job is to read the law, understand the facts, and apply the law to the facts. Period. While Judge Gorsuch certainly recognizes that a jurist may be tempted to ask whether [a law] was a wise or kind one, he has stated that the overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In his mind, a Supreme Court Justices job is the job of interpreting the Constitution . . . and that document isnt some inkblot on which litigants may project their hopes and dreams. That is the heart of conservative judicial philosophy. On the Right, we want the Supreme Court to be filled with textualist judges, not unelected super-legislators beholden to only their social conscience. Its a pity the Left doesnt understand that.
For more articles like this, please view my website at www.cameronkinvig.com.
Leiter is a desperate power seeker who seeks dictatorial rights without having to stand for election.
The lawyers need to be stepped on.
And a judge is just a lawyer who knows a politician.
Appreciate the kind words. Just ridiculous to see the Left’s judicial philosophy evolve into something so unconstitutional.
Completely agree on all fronts. Especially about “a judge is just a lawyer who knows a politician!” Extremely well said!
Wouldn’t it be too bad if Pres. Trump could end up placing 3 conservative, constitution supporting judges on the Supreme Court?
The exchange between Sen.Ted Cruz and Judge Gorsuch at this afternoon’s hearing was extraordinary. Hope YouTube will have it for those who missed it because it was outstanding.
” Its a pity the Left doesnt understand that.”
weak. It’s not a pity, it’s the seed of civil war.
otherwise, enjoyable read
They seem to think they are.
Good comment from the live Twitter feed from Gorsuch hearing:
“What a country. Judge with degrees from Havard and Oxford has to pretend to care what a dolt from SNL thinks about the law. #GorsuchHearing”
That’s exactly what they have become.
When was the last time a constitutional amendment was passed. Why go to all that effort when you only need 5 votes.
A big part of restoring constitutional government is going to be putting some checks on the courts.
Leiter is advocating a dictatorship of “philosopher kings”, a degenerate idea utterly contrary to our founding principles enunciated in the Declaration of Independence.
He has no business teaching law. He shouldn’t be a professor of any sort and instead should be working at the carwash.
good points made here.
The liberals look to the courts, especially the Supreme Court, as an ultimate legislature.
Abortion and homosexual marriage are key cases, in which the liberals got the Supreme Court to issue opinions which resulted in their favored outcome.
Rather than go through the legislative process, the liberals took the position that there is a constitutional right to abortion, and a constitutional right to change the definition of marriage to make homosexual activists happy.
If something is considered a constitutional right, then the liberals don’t have to go through the messy legislative process to enact legislation which ties in with their views. They just find a liberal judge to rule the “correct” way, and legislation or legal logic be damned.
There are other issues out there too, in which the courts have ruled and taken out the legislative process. But when you review the history of court cases on abortion and marriage, you can see how the activists laid the groundwork to eventually get a favorable Supreme Court ruling.
Archiving that for use in the newspaper/Facebook comments section.
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