With the sudden passing of Supreme Court Justice Antonin Scalia, much has been made about the impending partisan gridlock that is to occur in regards to the appointment of his successor. The upcoming year promises to be a mess in regards to the Supreme Court and a resolution does not necessarily appear to be on the horizon after the November election.
Much has been said in regards to Senate Majority Leader Mitch McConnell’s decision to block any Supreme Court confirmation in this election year. Seemingly every pundit, columnist, radio personality, and candidate has been forced to weigh in on how this issue should be decided. Interestingly, but not surprisingly, just about all positions that politicians have taken on the issue have been counter to their statements made in the past, when the tables were turned with a Republican President filling a vacancy. In 2007, nineteen months before there would be a new President, New York Senator Chuck Schumer announced that “we should not confirm any Bush nominee to the Supreme Court.” At the same time, then Freshman Senator from Illinois, Barack Obama actually filibustered the nomination of current Supreme Court Justice Alito.
This practice is to be expected, is completely Constitutional, and is by no means an unprecedented action. It is clear today as it has been clear for generations, the Supreme Court is not apolitical and is not unbiased bench of enlightened scholars. The Supreme Court is typically made up of far left and far right judges who blindly follow their preferred political ideology. The question that should be asked right now is: Why?
Why did the fathers of this nation believe it to be important that this branch possess the powers that it holds today? Why did the framers of the Constitution find it so important to entrust so much responsibility on a small panel of nine entrenched Washington bureaucrats?
Typically there the reasoning of “why” something is written in the Constitution is clear. It is typically not difficult to resolve this question by searching through the Federalist Papers, Magna Carta, or other historical documents. The train of thought typically is not too difficult to decipher. But the issue still surfaces in regards to the Supreme Court and searching for answers for this vital question only leads to more ambiguity. And this makes sense.
The fact of the matter is the Supreme Court, as it is today is nowhere to be found in the Constitution. Ryan McMaken of the Mises Institute authored an intriguing piece that explores this very issue of the Constitutionality of the Supreme Court itself. It is clear that Article III of the Constitution absolutely authorizes the enactment of the Supreme Court. However, it was not until the controversial Marbury vs. Madison decision of 1803 that the power of judicial review was actually created. The founders would most certainly be in shock to see how much power has been accumulated by such a small number of individuals on the court.
A recent article in The Week, entitled “America’s Supreme Court Nightmare” wrote of the true possibility that this Supreme Court vacancy may not be filled until 2021. This may seem far fetched, however in today’s hyper partisan environment this possibility must not be completely ruled out.
Regardless of what ensues people need to continue to ask “why.” How come whichever party happens to have power when vacancies arise is able to decide the fate of the nation and Constitution for decades? There is a very legitimate case to be made that in today’s America one Supreme Court holds more power than the President. Especially with such a divided court, one justice creates a completely different political climate. Knowing the history of this nation, how does it make any sense that one individual could possibly decide what an individual right is, what states may do, and other vital decisions to the everyday lives of Americans.
Today’s Supreme Court is the most apparent example of power being held in the hands of a few, and it represents the aristocratic model of government which led to the founding of this great nation. Although there are no apparent solutions to this issue, it bares mentioning and at the very least acknowledging this aristocratic model that has been created. It bares realizing that the current model of our judicial system is not at all what the framers of the Constitution envisioned.
With all the recent political turmoil, let’s reevaluate this system as a whole, and at the very least the Republicans in the Senate should assure that the voters in November ultimately must decide which direction this court will take for decades to come.