The principal Supreme Court litigator in Hollingsworth v. Perry that undermined federalism by overturning state civil unions in favor of nationalized gay marriage — wants Republicans to make nice with Democratic Senate leaders Harry Reid and Charles Schumer.
Writing in the conservative flagship The Wall Street Journal, George W. Bush’s former solicitor general Theodore Olsen calls for ending “partisan, mutually assured destruction and get back to deciding tough cases with a full bench” on the Supreme Court.
“Until this impasse is resolved, the court will often split four to four and will be unable to resolve many of the most important legal questions the nation is facing.”
Just a minute: is not “solving the nation’s important problems,” legal and otherwise, by unelected judges precisely what limited government folks on the right, and some on the left, object to about the Supreme Court these days?
Are not “all legislative Powers herein granted” by the Constitution conferred to Congress?
Does not the judicial power only extend to “cases” and “controversies”?
Which part of the Constitution does the judiciary resolving “the important legal questions” of the day appear in? Sure there is judicial review and John Marshall’s Marbury v Madison but that was to protect courts from executive power not to decide who should marry whom in the states.
Going beyond cases took imaginative jurists like Olsen turning the court into the supreme legislature and making up the Constitution as they go along.
Led by Reid and Schumer the Democrats have literally been doing nothing else since Justice Antonin Scalia’s death than blame Republicans for failing to give President Barack Obama’s nominee Judge Merrick Garland a hearing on and vote for confirmation to the court.
That vacancy is a called a “crisis,” which is claimed whenever someone does not get what they want—and right away. The Constitution is more deliberate.
Olsen’s “pact” among “responsible” leaders in both parties would have them promise that a hearing and a vote would take place within 120-180 days of a presidential nomination to the Supreme Court, which would start the Senate “down a path toward restoring an atmosphere of respect and civility.”
The spider-to-the-fly in the enticing Journal headline was “A Supreme Court Challenge for Democrats” as if they would have problems if they opposed Olsen’s deal.
What a bridge I have for you in Brooklyn. The Republicans would comply now and the Democrats would return the favor sometime in the future. Sure. Reid and Schumer are the two who led the effort to deny the nominations of straight-arrows John Roberts and Samuel Alito.
The chance of their following through on the pact is zero.
Want a real deal for increasing political civility? Return legislation to Congress and the states and respect the limited powers of the court under the Constitution.
Here is the first step. The Constitution does not set the number of Supreme Court justices.
That is still up to Congress. My pact would be to rewrite the law now to set an even number of judges as the permanent total of justices to sit on the court.
Why? Look what happened in the Little Sisters of the Poor v. Burwell case. Current law sets a nine member court so that a majority decision becomes the most likely outcome.
But with Justice Scalia’s death the total slipped to eight. In trying to decide whether to force the Little Sisters to purchase health insurance with linked abortion coverage they neither needed nor found moral, the court tied four-to-four about how to rule.
Rather than the impasse predicted by Olsen, however, the Supremes asked the government and the plaintiffs to come up with a compromise.
A panel of experts at the Constitutional Accountability Center noted that since Scalia’s death the court has only accepted six cases and demonstrated a reluctance to accept more the next term.
Apparently both sides have become cautious in adopting what lawyer John Elwood called “defensive denials” of court reviews so as to avoid radical results they do not like. Sounds like what they should have been doing all along.
If the court insists on being the supreme legislature, at least some modest checks on its unilateral power over legal issues become essential.
An even number on the court will not magically produce comity but it could insure ideological decisions based on narrow votes become less likely.
Indeed, requiring more than a simple majority for major decisions was the whole purpose of our balance-of-power Constitution.
Donald Devine is senior scholar at the Fund for American Studies, the author of "America’s Way Back: Reclaiming Freedom, Tradition and Constitution," and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term. For more of his reports, Go Here Now.
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