Thank you Independent Journal Review and Cameron Kinvig for clarifying to the socialist liberals in our country what the “separation of powers” means and what the role of the Supreme Court, and for that matter all federal courts, is!
They have no clue!
Due to the unfortunate passing of Justice Scalia in February of 2016, the United States Senate recently began confirmation hearings for President Trump’s pick to take his seat on the Supreme Court: Judge 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 shouldn’t 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 is leading the charge. Sen. Schumer has attacked Judge Gorsuch on his judicial record, highlighting cases where he 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.”
Leiter argues that we should view the role of the Supreme Court much as we do the politicized legislature. He believes its job is to pick outcomes based on political ideology and ideas related to personal and/or community morality – despite the fact that the Constitution clearly delineates the line between Congress (Article I) and the judiciary (Article III).
Professor Leiter’s view is consistent with the Left’s 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 bill’s 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 Leiter’s article, it seems that the Left expects the Right to act in a similar fashion. If the Left is determined to create an outcome-based judiciary, the Right must be as well. But that is not at all how the Right views the role of the Federal Judiciary.
The Right views the Federal Judiciary – and especially the Supreme Court – as 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 didn’t.” Other conservative jurists like Scalia, Thomas and Alito have consistently recognized just that. A jurist’s 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 Justice’s job “is the job of interpreting the Constitution… and that document isn’t 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. It’s a pity the Left doesn’t understand that.