“If you don’t vote for Trump, you are handing the court to Clinton! She will appoint so many liberal judges that we will never get it back!”
I don’t think anyone can argue the fact that the Supreme Court of the United States (SCOTUS) has become politicized. It’s possible the next President of the United States will appoint 3 to 4 judges to the court. It has become a lighting rod in the election. On both the right and the left, people proclaim that unless we want to see the court destroyed (and America with it) we must vote for their candidate!
Conservatives are told that unless we want to see the court swing far left we must vote for Trump. We have to stop Clinton at all costs. For some, this is the only reason they are voting for Trump. They hope that he will appoint conservative justices, while they know Clinton will appoint progressive ones.
Let’s forget about the fact that there were far better qualified conservatives in the primary that would have absolutely have appointed conservatives. Candidates about which there wouldn’t be any doubt, as opposed to a candidate who says “Everything’s negotiable.” Forget that the 40% of GOP primary voters who selected Trump did not care about the SCOTUS. This is where we are now:
We are faced once again with the fear that SCOTUS will slide to the left if we don’t get in line and vote for the GOP candidate.
Unfortunately, it’s too late. SCOTUS is lost. Our supposedly conservative court is the same one that upheld the Affordable Care Act twice and gave us same-sex marriage.
Conservatives try to appoint justices that will interpret the Constitution as originally written. Progressives appoint justices that will interpret it in light of current views and circumstances.
So, in our “conservative” court we see progressive appointees always render opinions that line up with progressive positions, and those appointed by conservatives sometimes break ranks and join the progressives. The only way to fight this sort of thing in the current climate is to appoint conservatives that will always render opinions along the lines of conservative positions. Just as progressive justices adhere to their progressive values, we must appoint justices that will adhere to conservative principles even if they feel they violate the Constitution.
This is not what the Court is supposed to be.
This one branch of government is not supposed to have this much power. They are definitely not supposed to legislate. Aside from hearing cases from lower courts, one of their main roles is Judicial Review. Since 1803, Marbury vs Madison, SCOTUS has passed judgment on the actions of the Executive and Legislative branches of government. Here’s a quote about the case from USCourts.gov:
“In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.”
I believe that SCOTUS has moved too far away from what it was. Justice is no longer blind, but instead the view of the court is slanted to the right or left. We should not fear our own Supreme Court, no matter what party holds the Presidency. Pandora’s box is open. There is no way to return to the Court of before. We have to find a way to fix the Court as it is now.
Currently the only way to reverse a SCOTUS ruling is with another SCOTUS ruling or a Constitutional amendment. That worked well when the Court wasn’t legislating from the bench. Imagine Congress with such limited checks and balances that every law they ever passed was virtually immune to being overturned. That is SCOTUS today, When they make such broad rulings that, in effect, force new laws on the people, they have overstepped their role and need to be put in check.
The power to appoint Justices to the Court has become a political tool that is more effective then electing actual legislators. We have allowed this to happen, and we can stop it. The solution is not to appoint justices that reflect our views, so we can get rulings we like. That is a temporary solution to a long term problem. That solution ensures that we will always be in a fight for the Court.
The long term solution is found in Article V of the Constitution.
“Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress”
This solution doesn’t just have the potential to fix SCOTUS, but to limit the power and jurisdiction of the Executive and Legislative branches as well. 34 states must petition for a Convention and submit amendments. We can fix our government. But repeating the same cycle of elections over and over is not the way. A Convention of States could be.
Regarding the Court; I believe the current system has been corrupted to the point that it must have outside reform. We cannot appoint our way out of this mess. We need measures to limit terms of Justices and ways to more easily overturn a ruling.
That is what we should be fighting for. The current Presidential election matters, because the President does (among other things) appoint Justices. But the only way to actually, truly fix SCOTUS is to limit its power. No President can do that.