An 8 member SCOTUS will not destroy the Republic

February 28, 2016

scotussealNow that Senate Majority Leader Mitch McConnell has thrown down his “not a snowball’s chance in hell” gauntlet regarding an Obama Supreme Court nominee we’re going to get a ring side seat as to just how deep a hole can get.  (As a kid digging my own I never made it to China but McConnell just might.)

While I am firmly against another justice that mandates societal wants over constitutional foundation, spouting off before a name has even been presented, is as extreme on the right as Obama is on the left.

Ever the smart politico, the President has let it leak that current Republican Governor of Nevada, Brian Sandoval is on the “short list” of potential nominees.  If Obama actually did nominate Sandoval it would be the pinnacle of the legacy he so fervently chases but with Obama it is never what you see, it’s what’s behind the scenes.

While his “bitter clinger” and “spread the wealth around” comments caught the headlines, it was his comments to Public Radio station WBEZ-FM in 2001 that bared his soul on the Constitution:  “as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution….that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted”

What makes Scalia’s replacement so critical is that shifting power from the individual to the collective via the courts is the Holy Grail for Obama and the political left.  And they now see it within their grasp.

But could a Trump victory in November make it even worse?

Imagine a lame duck Congress and a lame duck President hatch a plan to thwart the incoming Trump.  Sweeping legislation is passed that expands federal circuit courts and gives Obama the power to just appoint federal judges and justices of the peace.  Two days before his term expires, Obama makes dozens of appointments and the commissions begin to go out.  A few however get delayed and President Trump orders them stopped.  A disgruntled Obama supporter sues and the case makes it to the Supreme Court.  (A court with only 6 members, 2 of which were too ill to take part.)  In the end the lame duck legislation is deemed in conflict with the Constitution and it and the commissions are thereby null and void.

Sounds impossible, but it’s not.  It actually happened and the players were none other than John Adams, Thomas Jefferson, John Marshall, William Marbury and James Madison.  The case is Marbury v Madison and its over two centuries old precedent was handed down by only 4 justices on February 24, 1803.

There will be much “the President has the right” screaming over the coming months but all need to remember the makeup of the Supreme Court is solely a job for Congress.  There is no constitutional mandate that it be 9.  It has been as low as six, as high as 10 and FDR even tried to expand it to 15.

While I strongly believe a nominee should get a hearing, I’m even stronger in the belief that in this polarized environment an evenly divided Court is not the end of this Republic, but rather may be just exactly what it needs.  John Marshall didn’t get his 4 – 0 decision siding with an ideological clique, he did it through logical argument.

And if the 8 current Justices now have to re-examine their own arguments in the vein of Marshall and re-focus on constitutional consensus would that really be such a bad thing?

PUBLISHER NOTE: An edited version of this column first appeared in the February 28th, 2016 print edition of the Joplin Globe.

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