Tags: Supreme Court | court packing | democrats

What Will Become of the Supreme Court?

scalia in his judicial robe
Former Supreme Court Justice Antonin Scalia

By    |   Tuesday, 28 July 2020 10:19 AM

President Ronald Reagan currently holds the record for the most judges appointed to the federal judiciary at 383. On the Supreme Court, he appointed one chief justice and three associate justices. He also appointed 83 circuit court judges and 296 district court judges.

In 2011, Reagan appointee Justice Antonin Scalia testified before the Senate Judiciary Committee about the role of justices. He explained that American freedom is rooted in the Constitution's separation of powers and the independence of the judiciary.

In his testimony, Scalia noted that: "Every banana republic in the world has a bill of rights. Every president-for-life has a bill of rights."

He pointed out that the constitution of the former Soviet Union espoused many rights, too. What ultimately differentiated the United States Constitution from the former Soviet Union's constitution was the separation of powers.

As Scalia argued:

"That constitution of the Soviet Union did not prevent the centralization of power in one person or in one party, and when that happens the game is over. The bill of rights is just what our framers would call a parchment guarantee. So the real key to the distinctiveness of America is in the structure of our government. One part of it, of course, is the independence of the judiciary."

Protecting the independence of the judiciary is vital to the rule of law and maintaining our freedoms. When it comes to interpreting the Constitution, there have been three types of Supreme Court Justices: textualists, institutionalists and ideologues.

Justice Scalia was the quintessential textualist. He left an undeniable jurisprudential legacy for conservative justices to follow. One of the most consequential textualist decisions was Texas v. Johnson (1989), where the Supreme Court ruled that flag burning was protected by the First Amendment.

From a political perspective, Scalia was no fan of flag burning or the people who did it. But reading the text of the Constitution and applying a consistent judicial philosophy led Scalia to agreeing with the majority of the Court that burning the U.S. flag constituted protected free speech. Scalia ruled in favor of a man named Gregory Johnson, a communist activist, had a right to desecrate the flag that Scalia loved. It was no doubt the right outcome and the right way for justices to consider cases.  

In that spirit, every single nominee for the Supreme Court in the future should be asked if they ever had a "Scalia moment" when their legal interpretation was incongruent with their political preferences.

In recent Supreme Court history, institutionalists and ideologues have been unable to resist the temptation to stretch their interpretations of the Constitution to favor the outcome they prefer. The leading institutionalist on the Court today is Chief Justice John Roberts.

While Roberts has been a textualist in many of his decisions, protecting the Supreme Court's independence and reputation by bowing to popular opinion has become an increasingly larger driver of his judicial reasoning. The best example of Roberts' institutionalist priorities was National Federation of Independent Business v. Sebelius (2012).

Roberts' written opinion in that case appeared to discover a line of reasoning that the individual mandate in the Affordable Care Act was in fact some form of tax. The strained reasoning resulted in the preservation of the Affordable Care Act.

Institutionalists have a long history on the Court, which includes the notorious "switch in time that saved nine" when Justice Owen Roberts joined the majority in West Coast Hotel Co. v. Parrish (1937).

That decision derailed President Franklin Roosevelt's ambitious and dangerous court packing plan. From 1937 to 1943, Roosevelt's appointees eventually came to dominate the Court. In just six years, Roosevelt appointed one chief justice and eight associate justices. With nine appointments to the Supreme Court, FDR is second to only George Washington's 11 appointees.

Today, progressives are openly threatening a court packing scheme to alter the Supreme Court. In August 2019, five Democratic Senators (Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard J. Durbin, and Kirsten Gillibrand) sent an amicus brief to the Supreme Court warning them, "Perhaps the Court can heal itself before the public demands it be 'restructured in order to reduce the influence of politics.'"

During the 2020 Democratic primary, Tom Steyer explicitly supported court packing while Cory Booker, Elizabeth Warren, Kamala Harris, Amy Klobuchar, Kirsten Gillibrand, Andrew Yang, Seth Moulton and Steve Bullock were on record as being "open" to the idea.

Vice President Joe Biden is officially opposed, but this is another area where it is questionable whether he will be able to stand up to the far left in his party. If Harris or Warren becomes Biden's running mate, and later assumes the presidency, court packing could become a serious effort.

In the short run, the institutionalists have a point that the Court cannot ignore public opinion in all cases. Too many unpopular decisions could trigger a successful voter-supported court packing plan; however, if the text does not restrain the justices, what will?

The American people deserve justices who will protect their constitutional rights. As Alexander Hamilton wrote in Federalist 78: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."

Robert Zapesochny is a researcher and writer whose work focuses on foreign affairs, national security and presidential history. His work has appeared in a range of publications, including The American Spectator, the Washington Times, and The American Conservative. For several years Robert worked closely with Peter Hannaford, a senior aide to Ronald Reagan, as the primary researcher on four books and numerous columns. Robert has also worked on multiple presidential, national and statewide campaigns, including as a field office staffer for the Bush-Cheney campaign. Due to his own Russian-Jewish heritage, Robert has a keen interest in the history of U.S.-Soviet relations. In 2017 he was the co-organizer of an effort that erected commemorative statue of Ronald Reagan and Mikhail Gorbachev in Moscow. Robert graduated with a major in Political Science from the University at Buffalo, and received his Master's in Public Administration, with a focus in healthcare, from the State University of New York College at Brockport. When he's not writing, Robert works for a medical research company in Rochester, New York. Read Robert Zapesochny's Reports — More Here.

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Protecting the independence of the judiciary is vital to the rule of law and maintaining our freedoms.
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2020-19-28
Tuesday, 28 July 2020 10:19 AM
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