Fix the Supreme Court by Following the Constitution

The Democrats don’t want to fix the Court, they want to break America.

June 5, 2019

Daniel Greenfield, a Shillman Journalism Fellow at the Freedom Center, is an investigative journalist and writer focusing on the radical Left and Islamic terrorism.

Mayor Peter Buttigieg took a break from running the worst city in Indiana to call for raising the number of Supreme Court justices to fifteen. The plan comes from the same Rhodes Scholar who claimed that we should move to a popular vote system "if we're going to call ourselves a democracy.”

Buttigieg has a degree in history from Harvard, but knows less than a third grader did in 1925.

Court packing schemes have been endorsed by Senator Elizabeth Warren, Senator Kamala Harris, Senator Kirsten Gillibrand, Robert Francis O’Rourke, Mayor Buttigieg and a bunch of other candidates you never heard of. Other 2020 candidates, including Senator Bernie Sanders and Senator Cory Booker, have proposed rigging the Supreme Court in another way by introducing term limits for the justices.

These proposals are invariably described with euphemistic verbs like “reform” or “fix”. But the only reason that they suddenly decided SCOTUS needs reforming is because they’re no longer in control of it.

That’s not reforming or fixing, it’s rigging.

Demand Justice has proposals for both court packing and term limits.

"There is a growing consensus in the Democratic party that the Supreme Court must be reformed," DJ’s leader, a former Clinton adviser, declared. "No one is any longer defending the status quo of just letting the Roberts Court block progressive proposals for the next 30 years."

When leftist judges block conservative proposals for 30 years, that’s progress. When conservative judges block leftist proposals, that’s an intolerable status quo which must be reformed by packing SCOTUS.

Everything else is a word salad of lies, gibberish and invented facts.

CNN and New Yorker legal analyst Jeffrey Toobin claimed that, "When the Constitution was written in the late 18th century, people were expected to die in their 50s."

Toobin, who graduated magna cum laude from Harvard Law and whose book about the Supreme Court won a journalism award, suggested that, "The Framers never contemplated that these terms would regularly go to 30-plus years as they do now."

This would have come as news to John Jay, the first Chief Justice, who died at the age of 83, or William Cushing, the third justice, who served out a 20-year term and died at the age of 78.

John Adams died when he was 90. His first Justice, Bushrod Washington (George’s nephew) spent 31 years on the bench. His third Justice, Chief Justice John Marshall, died at 80, after a 34-year term.

Thomas Jefferson lived until the age of 83. His first Justice, William Johnson, spent over 30 years on the bench. James Madison died at 85. His second Justice, Joseph Story, not only spent 33 years on the bench, but lived long enough to rule on the Amistad slave ship case and be photographed in 1844.

Despite what Harvard Law’s finest thinks, the idea of people living past their 50s was not a new idea.

The value a Harvard education has declined from the era when Justice Joseph Story taught there to the age of wunderkinds like Toobin and Buttigieg brimming with radical solutions and abject ignorance.

Buttigieg claims that his court packing scheme is needed to stop the Supreme Court from functioning as a “nakedly political institution.” But nothing is as nakedly political as packing the Court when your political faction is no longer in charge of setting the agenda. The Roberts Court isn’t nakedly partisan. At worst its partisanship comes wearing a pair of Bahama shorts and a light windbreaker.

Judges are selected through a partisan process. And the Democrats were much better at creating partisan outcomes until they started impatiently dismantling the protections of the process. When Harry Reid pushed the nuclear button, he destroyed the process that helped create the Court’s leftward tilt.

The rest is history.

But the good news is that while judges may be partisan, the Constitution isn’t. When judges follow the law, instead of making up their own laws, then their partisan tilt doesn’t really matter. However, when judges invent their own laws, they undermine representative government and the rule of law.

And then all that’s left is the current ruthless judicial deathmatch followed by rigging the system.

Take it from that notorious right-wing nutjob who defined the Republican Party and sits on a giant marble chair, quoting a founder of the Democrat Party who has his own giant statue in D.C.

“To consider the judges as the ultimate arbiters of all constitutional questions,” Abraham Lincoln said, quoting Thomas Jefferson during the Lincoln-Douglas debates, would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”.

The despotism of the oligarchy of judicial supremacism is here. So is the exit strategy.

Democrats want to fix or rig the Supreme Court until it goes back to enforcing their agenda. Their nakedly partisan desperation has led them to court packing proposals that would destroy the judiciary.

Even if the Democrats got enough of a majority to implement their court packing scheme, the decisions of such a court would be rightly disregarded as the product of an illegitimate institution.

And Republicans, once they had won a majority, would just resort to adding even more justices.

"My worry is that the next time the Republicans are in power they will do the same thing," Senator Bernie Sanders said, dismissing court packing as a realistic option.

Things are really bad when Bernie Sanders is the one pointing out that a leftist policy is stupid.

Democrats have dug their movement into a hole by transforming the judiciary into an activist body. Their hysterical calls to “fix” the Supreme Court the way you fix an overexcited dog correlate with unprecedented abuses of power by Obama and Clinton judges in appeals courts.

Obama fundamentally reshaped the judiciary. Trump is even more fundamentally reshaping it. As nuclear buttons get pushed and the process is streamlined, the combination of a majority party with control of the White House and the Senate will mean unstoppable power to mold the judiciary.

That is not a compelling argument for trying to rig the process for a temporary advantage.

Court packing would destroy the legitimacy of the judiciary. Term limits would make the judiciary an even more partisan creature of the ruling party of the moment. Both are bad, unconstitutional ideas.

The way out of this mess is to end the “despotism of an oligarchy” that Jefferson warned us it would become, endowed with the power to overrule the other bodies of government that have no check on it except through the appointment of its members, and restore the rightful rule of the Constitution.

Democrats and Republicans bemoan the power of the courts, but continue to believe in judicial supremacism, a doctrine that is not only dangerous and wrong, but has led directly to this conflict.

Republicans define their party by Lincoln, and Democrats by Jefferson and Jackson. All three men rejected judicial supremacism and the unlimited power of a judiciary over the political system.

Jefferson and Jackson viewed the Supreme Court and the other bodies of government as equals.

What does that mean? It means, in Jefferson’s words that the Constitution meant for the three branches of government to be “co-equal and co-sovereign”, and, in Jackson's words, that “the Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution.”

The Constitution is not purely the legacy of the Court, for it to reshape, transform and even usurp, as it sees fit. It belongs to all the three branches of government and to the people of the United States.

The Supreme Court has an important role in deciding the final outcome of court cases brought to it. But it is not the WMD of politics. It does not have the power to transform society and the other branches.

The Democrats keep proposing to “fix” the Supreme Court in order to retain their power to abuse it. But that doesn’t fix the Court, it perpetuates its breakage and that of the system of checks and balances.

The Court without the Constitution will always be an oligarchy whose despotism is up for grabs.

The Democrats can agree to end the despotism or try to always be the despots. But the only way to do that is to end the existence of a Republican political opposition that is the real object of their grievance.

It’s not the Court they want to fix. It’s the existence of anyone and anything that stands in their way.

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