Judicial Interpretation

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This is my second posts on recent Supreme Court nomination of Judge Amy Conny Barrett’s hearing. In the previous post, I noted some thoughts about the hearings and why it has become so contentious in recent years.

In an opinion article in the Hill, Tom Lindsay, a distinguished senior fellow of higher education and constitutional studies at the Texas Public Policy Foundation, writes “Supreme Court confirmations have ‘gone wildly political‘” because of the judicial interpretation.

This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.

From Wikipedia

It’s the “false assumption that constitutional interpretation falls into “conservative” and “liberal” categories, it’s not” writes Prof Lindsay. He adds, this is because since the Warren Court of the 1950s and 60s ‘members of the Supreme Court itself have decided that all constitutional interpretation involves political considerations. This is against the what America’s founders intended’.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous (emphasis added) to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. [..] The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse . . . It may truly be said to have neither FORCE nor WILL, but merely judgment…

Alexander Hamilton in Federalist 78 (source: The Hill)

Prof Lindsay writes that white taking political consideration in judicial review of laws, “the Court did not exactly ‘steal‘ its powers from Congress but Quite the contrary: Congress has gladly allowed — even welcomed the Court’s expansion”.

Why? The first and foremost goal of virtually all elected leaders is to get reelected. But getting knee-deep in contentious issues, such as abortion, threatens their reelection chances. They prefer to be able to rail at the Court for this ruling or that ruling, and then to throw their hands up and sigh, “Well, the Court has decided. There’s nothing I can do” — which means, “keep electing me anyway.”

Prof Tom Lindsay in The Hill

No Hearing Before 1955

According to the Prof Lindsay, there were no confirmation hearings held by the Senate for federal judicial nominees, before 1955. “Instead, all that was done was what the Constitution required, which was simply that the President nominates, and the Senate confirms — or not”. He warns us all that “we have reached the stage that Thomas Jefferson warned us against — what he labeled “judicial oligarchy.”

Senate Confirmation & Partisan insults

The Senate judiciary Committee voted in party-line to advance Judge Barrett’s Supreme Court nomination amid Democrats’ boycott protest against the confirmation process. In the Senate floors, the Senate leaders trade insults ahead of the next week confirmation.

Based on where the power lies at any given point in time, is the driving force for both sides of the political spectrum. Partisan ends justify hypocritical means, while principles are for losers, or so said Machiavelli.

Alan Dershowitz in the Hill OpEd

What is Next?

Alan Dershowitz, professor emeritus at Harvard Law School, writes in The Hill OpEd: “This would not be the first time that the Supreme Court will have been in opposition to the popularly elected branches of government”.

During our history, the Supreme Court has been the most conservative branch, often slowing down the progress of the more liberal elected branches, as it did with the New Deal in the 1930s. For much of our history, there have been tugs of war between the elected branches and the Supreme Court. Now we can perhaps anticipate more of that in the near future.

Alan Dershowitz in the Hill OpEd

In The Atlantic, Adam Serwer writes: “The Supreme Court’s conservative majority appears poised to entrench minoritarian rule without the consent of the electorate”.

This note post is part of understanding US judicial system series inspired by the recent death of Justice Ginsberg and senate hearing on judge Amy Conney Barrett’s nomination to fill the Supreme Court vacancy.