Pack the Supreme Court

Want to reign in the activist tendencies of the statists* on the U.S. Supreme Court? Take a look at current federal law to see the answer:

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

Elect conservative Republicans — and tractable RINOs — to the House and Senate, evict Barack Obama from the White House, and change this law. Increase the size of the Court to 11 or 13 justices, then fill the vacancies with constitutionalists (those who interpret a law by looking to the commonly-understood meaning of a law’s text).

Problem solved.

* the four leftists plus the squishes, Kennedy and Roberts

Obamacare prediction

Here’s my prediction for tomorrow’s ruling on Obamacare by the U.S. Supreme Court.

Based on reports of ├╝ber-leftist Justice Ginsburg penning the dissent, and based on the way the conservative wing of the Court (plus perennial swing voter Justice Anthony Kennedy) grilled Obama’s Solicitor General during oral argument over the severability issue earlier this year, I’m guardedly optimistic.

The individual mandate will be tossed as unconstitutional. Then, because there’s no severability clause in the bill, the Court will toss the rest of the bill along with the mandate. That will kick the whole issue back to Congress for a do-over, on what’s as close to a procedural technicality as possible. This Court doesn’t want to sift through thousands of pages of legislative sausage to craft a politically palatable compromise. That’s not possible to achieve, and they’re loathe to get blatantly involved in partisan politics to begin with. The ruling will be a long-winded version of “you guys did this wrong so you have to start over from scratch.”

At any rate, that’s what I’m praying for.

6/27/2012 Update: Whoa.

Anthony Kennedy on abortion: steady as Jell-O

This fall the U.S. Supreme Court will be tackling partial birth abortion again. Two cases overturning the Partial Birth Abortion Ban Act of 2003 will get a final hearing, and we’ll get to see where our two newest Justices stand on abortion. SCOTUSblog has posted a summary of what’s in dispute. I dug up the published opinions from both Courts of Appeals, so you don’t have to rely on the mainstream media to tell you what’s in them (both are Adobe PDF files):

8th Circuit:
Gonzales v. Carhart
9th Circuit:
Gonzales v. Planned Parenthood
(Kook Warning: this is a Judge Reinhardt opinion!)

Here’s the conventional wisdom on who supports the ban on partial birth abortions:

SCOTUS vote prediction

Kennedy is the wild card here. While he’s pro-abortion in general, he joined the conservatives in the Court’s first crack at partial-birth abortion (too bad there were only three plus Kennedy, because they lost):

The Court’s decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the State’s competence to enact.

Justice Kennedy, dissenting
Stenberg v. Carhart

Kennedy’s dissent encourages pro-lifers and hints that he might join the conservatives again this time around. Unfortunately, it was also written six years ago. Kennedy has been sliding steadily leftward during his tenure on the Court, and it’s anybody’s guess how much “evolving” or “growing” he’s done since 2000. With Justice Sandra Day O’Connor’s retirement, he has assumed the role of the swing voter, and that kind of power is very seductive to any Justice with no discernable judicial philosophy.
There’s plenty of reason to worry. In an abortion case eight years before he confronted partial-birth abortion, Kennedy penned this doozy:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The man’s unpredictable. He overturned a state constitutional amendment denying special rights for homosexuals because he deemed it “inexplicable by anything but animus.” Magic 8-ballHe overturned an anti-sodomy law. He agreed with Justice Scalia that juveniles should be eligible for the death penalty … but then he flip-flopped. He opposed the McCain/Feingold muzzle on free speech. He supported government redistribution of private property. He opposed a federal anti-gun-possession law. He supported ending the Florida recount in the 2000 presidential election. He upheld Oregon’s institution of doctor-assisted suicide.
Enough! My brain hurts. If anyone can assemble Kennedy’s opinions into a coherent judicial philosophy, it’ll be news to me. For all we know he uses a ouija board to help him decide.
So will Anthony Kennedy object to infanticide again? I can’t shake the sinking feeling that it all depends on how much his wife values those cocktail party invitations from Washington’s liberal “in crowd.”

A little rebellion now and then …

The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

— Abraham Lincoln

Lincoln’s fears have come to pass. The Supreme Court has too much power. I know this isn’t news to anybody, but it’s a growing problem and we aren’t doing enough about it.

I like some Supreme Court rulings. I dislike others. Lately, their generally conservative trend has warmed the cockles of my reptilian Republican heart (wink, wink), but I’m not so shortsighted that I think it’ll last forever. I hate Roe v. Wade in large part because it’s an overreach of judicial authority, and some of you libs out there hate different cases for similar reasons. There’s a bedrock principle involved here that’s worth upholding by both the left and the right: citizens ought to have the final say over policy decisions that affect them. But our power over our lives is steadily being eclipsed by our courts.

“Fine,” you say, “but what do we do about it?” The solution is simple in concept, but hard to execute: pit Congress and the President against the Supreme Court.

GhidrahThe only things that’ll keep the Supremes from running amuck in either direction are the other two branches of the federal government. The Founding Fathers left us a three-headed federal monster that was supposed to be too busy fighting itself to mess with the citizenry much. But although Congress and the President have the authority to act in ways that can restrain the Supreme Court, since the days of the Warren Court they’ve been derelict in their duties. The three-headed monster is now focused on us. One head makes stuffy legal pronouncements about anything and everything, and the other two heads say “yes, sir” and promptly chew on what remains of our lives, liberties, and property.

Have you ever noticed that Supreme Court rulings are treated with excessive awe and reverence by our society? Even your local U.S. Court of Appeals gets a bucketful of deference (unless you live in the Ninth Circuit, thankfully). Yes, small groups of us complain about this ruling or that, but nobody really challenges the judiciary in a serious way. Judges appropriate greater and greater authority for themselves every year, and the average person on the street assumes that if the Supremes say “such-and-such is constitutional”, then that settles the debate.


Most Americans went to public schools where the quality of civics education stinks. Joe Citizen is a good guy, but he doesn’t have a lot of free time to pay close attention to the courts, and assumes that most judges are impartial interpreters of the law. After all, back in school their government-funded “Social Studies” classes said so!

The typical American accepts without thought the media’s reports on Supreme Court rulings as settled law on a par with the Ten Commandments. Congress and the President realize this, and they understand that they can get away with advancing their policies via lawsuits and court orders. That way, the blame for any unpleasant results can shrugged off and dumped onto unelected judges with life tenure. “Don’t look at me,” says the politician seeking re-election, “I didn’t make the decision. The courts did.”

Abortion protestPolitical factions aren’t stupid; if we’re to be ruled by the judiciary, then that’s where the attention will be focused every November. That’s why the judicial nomination process has gotten so politicized lately, with competing factions vying to nominate ideologically like-minded judges who will hopefully toe the party line on this issue or that. Instead of interpreting the law, our favorite black-robed dipsticks make the law … from the bench.

But why should it be that way? I don’t care whether the judicial power grab comes from the left or the right; it’s still a steaming pile of horse crap.

The Congress and the President have an obligation equal to the Supreme Court’s to interpret the Constitution in the course of their duties, and it’s high time they got serious about it. Until we voters light a fire under their pinstriped butts they will continue to take the path of least resistance. They’ll keep neglecting the critical work of preserving, protecting, and defending the Constitution. Power abhors a vacuum, and the unelected Supreme Court will continue to fill it until the other two branches stop farting around. Do you feel like entrusting social change to nine black-robed Philosopher Monarchs? I sure don’t.

It wasn’t always this way. Andrew Jackson once defied a Supreme Court ruling declaring his Indian Removal policies unconstitutional, saying “John Marshall has made his decision; now let him enforce it.” FDR’s New Deal gives me hives when I ponder it, but I’ve got to give the guy his due for the politically brilliant court-packing stunt he used to rein in the Court’s opposition to his exercise of Presidential authority. And in the 1869 case Ex Parte McCardle, the Court backed off when Congress flexed its Article III Section 2 muscle to remove the Court’s appellate jurisdiction over a certain category of cases.

The political issues motivating these uses of constitutional power varied, and the moral justifications are open to debate, but the underlying political principles were the same. That system’s still there, if we can muster the will to use it. The U.S. Supreme Court can be reined in, and it’s long past time to start. I’ll be thinking about strategies this summer, and hopefully some will be worth blogging about.