This Week’s segment of Cline on the Constitution.
The Danger of One Person Rule
Justice Brett Kavanaugh’s nomination is currently being navigated through the shark infested waters of the United States Senate populated with man eaters hungry to attack, chew up and dismember someone who, by all accounts, is a good and honorable family man with impeccable legal credentials.
As usual the “Chicken Little” corps on the left predict the end of civilization as we know it should he be confirmed. That isn’t true. However, can we expect an impact an on direction of the court? Sure. And it is prudent to consider how it may affect the direction of the Court, but without all the folderol.
As I contemplate potential changes in the jurisprudence of the Supreme Court, I begin with of the warnings deceased Justice Antonin Scalia gave about how modernly the Supreme Court and the entire federal judiciary is moving the country away from democratic rule. Although it can be seen in rulings and orders of Federal Judges across the country, the Supreme Court’s just competed term provides the most visible example.
It is plain from reviewing the cases that the Supreme Court is severely split along ideological lines. It’s may be the worse it been since the Great Depression. This isn’t the fault of either Justice Kavanaugh nor President Trump. It has existed for some time. And though historians might disagree, most lawyers with any sense of political realities know why. It is the result of the Federal Judiciary throwing off the bonds of traditional judicial restraint.
I will in future blogs analyze each of the major cases decided in the last term, but I first wanted to take an Eagle’s eye view especially in light of the unbridled rage and hate speech directed at the latest nominee to the Supreme Court.
In the just completed term there were 19 split decisions by the United States Supreme Court. In each case the vote was divided 5 to 4. These cases involved momentous blockbuster issues. Cases on Immigration, National Security, Voting Rights, Gay Rights, Religious Freedom, Compelled Speech, Abortion, Union Shops, Cell Phone Privacy, and Taxation of Internet Companies like Amazon were all decided 5 to 4. Pause here a moment and consider if the vote is 5 to 4, then the vote of one person decided each of these issues for the rest of us, all 350 million, give or take. Not a representative Congress, not a nationally elected President. Rather, one person. And an unelected one at that.
Of those 19 cases, Justice Kennedy whom Justice Kavanaugh will be replacing was a deciding vote or in the majority in all 19.
To be fair, some of the majorities in the 5-4 decisions had surprising alliances. Justice Gorsuch, the newest justice and one who is identified with the conservative wing of the Court joined his more liberal colleagues to strike down a deportation order because the law written by Congress was unconstitutionally overbroad. Similarly, Chief Justice Roberts joined the liberal wing while liberal Justice Ginsberg voted with the conservative wing in rewriting the state taxation powers over internet companies like Imperial Amazon. But those few exceptions aside, by in large, the conservative/liberal split was maintained throughout the term.
The number of 5-4 decisions on the important issues of the time, is an indicator that there may something wrong with our democracy. If the vote of the most learned of our men and women of the law is so evenly split, then the law is not crystal clear. However, because the Court has set itself up as Regal arbiter, the great issues are decided by one person’s vote.
The legal media like to call it a “swing vote.” And that one vote by one person decides who wins and who loses on issues which once were debated in the Congress and the state legislatures. Instead, we wait on court decisions like an athletic event that has gone down to the wire. And upon announcement cheers or moans go across the land depending on whether your team won or lost.
The problem is that democracies are not supposed to be run like this. One-person rule is anathema to democracy. It matters little that the swing person may rotate among the same nine persons rather like the presidency of the local rotary club. It’s the wrong institution to attend.
Established Constitutional principles of Judicial Restraint compel the Supreme Court to defer certain issues to the political branches, the democratically elected Congress and President. We may soon see the results of the Court’s moving away from this basic principle.
First Congress is damaged. We no longer ever have reason to cheer the success of Congress, our elected representatives facing difficult issues, taking testimony from expert witnesses, respecting and considering the regional implications of a law, debating vigorously and then formulating a policy to be applied in all future instances and having processes in place to modify the policy even as its being implemented. And the Congress is damaged in other ways. It is a basic political axiom that if you can maneuver a hot political issue over to someone else to take the heat, you do so. And knowing the Supreme Court is all too willing to intervene, Congress has gotten use to abdicating their responsibility. It is exceedingly easy to attack persons, even good people like Justice Kavanaugh. It is hard work to actually propose, work with the other party, and pass legislation to address policy issues.
And the Presidency is undermined. We have little time to judge and improve the Executive Branch’s actions. Even though the expertise might be with the Administration and the framers of the Constitution intended a President to be able to take swift action, modernly every move, every change, a President makes is immediately challenged in federal courts and a lone arrogant federal judge somewhere will most likely issue injunctions and orders on how the policy is to be implemented or prevent it from being implemented at all. And again, the ultimate arbiter the body we seem to have granted the power of pre-approval, is that “One Supreme Court” of nine persons, all educated the same way at the same Eastern schools who can’t even agree among themselves.
The process has been further corrupted by calls for lightening quick decisions. The unwise and historically novel approach of the Court requiring pre-approval of all acts of the other two co-equal branches of government has perverted the system of appeals. Briefing schedules are expedited. We do not insist on the time to develop and explore the legal rules, precedents and implications of decisions. There is no time to review numerous amicus briefs from interested groups nor to hear well prepared, skilled oral advocacy. Now we demand our legal decisions, like everything else happen in the blink of a news cycle. It’s not a good way to apply Constitutional Law and it’s not a good way to run a large powerful country.
Have we devolved to one-person rule? Is that why there is so much animosity against someone of Justice Kavanaugh’s character and credentials? Is it because we know we are now ruled as Justice Scalia says by a majority of nine persons? And is it because that person, whether a Supreme Court justice or a federal judge on the lowest rung of the judicial ladder, is an unelected, unaccountable individual with little or no expertise in the subject area and who is poorly equipped to address the complexity of most issues?
There is a real danger here. And it is more than a gradual weakening of our democratic institutions.
A dangerous consequence may occur in the not too distant future. The other branches may say No and defy the orders of the Judiciary. Then what? The Court has no police force, no military, no control of the purse strings. The judiciary under the Constitution has only the power of persuasion. And that was done by the framers intentionally.
If the Court continues to fail to adhere to principles of Judicial Restraint which earlier Supreme Courts wisely and prudently followed; if they continue to undermine and supersede the other democratically elected branches of government, the Congress and the President, they may find themselves in a confrontation. And if on that particular issue they don’t have overwhelming support from the entire public they will surely lose.
And if they lose just one Constitutional confrontation of that sort, we all lose for all time.
For other postings of Cline on the Constitution visit philcline.com