Supreme reform

Supreme Court reform is a welcome subject.

The encroachment by nine unelected, lifetime-tenured members of the elite judiciary upon the legislative branch has been detrimental and politically divisive, distorting not only presidential but also senatorial partisanship.

Historically, few presidents campaigned or got elected based on prospective Supreme Court nominations. Yet for millions of Donald Trump voters in 2016, that constitutional provision proved to be a linchpin issue. For millions more this year, it will remain so.

The Senate’s “advice and consent” authority has similarly grown in significance, adding imbalanced and undue weight to Congress’ upper chamber, which is the less representative of the bicameral bodies.

There’s a chicken-and-egg dilemma at play. To what degree have the justices sought to make law because we the people turned to them (and away from slow-ebbing Congress) for quickturn solutions on thorny social issues?

The genesis of this separation-of-powers sin matters less than the recognition now that it needs correction. Having only five or six people that aren’t remotely representative of the citizenry — even if they are of stellar intellect and integrity — impose their will on outsized self-governing legislative issues and questions, which affect tens of millions of people, is oligarchy, not democracy.

But rectification cannot be expected from the party that has come to live and die on SCOTUS complicity in achieving rulings by fiat rather than congressional consensus and compromise. Far-left Democrats’ addiction to supreme edicts have made them dependent on a flawed model that flaunts abuse of constitutional governance.

The binge began decades ago, and the impairment has finally reached dysfunctional proportions. The last confirmation hearing was an embarrassing spectacle, a grotesque circus of Shakespearean stage-strutting and fretting complete with sound-and-fury gimmickry (college yearbooks, seriously) that signified nothing but incapacitating partisan incompetence.

One can only imagine what the coming encore will look like.

Just as President Obama did in 2016, President Trump will make a Supreme Court nomination. And just as Democrats unsuccessfully urged back then, when their party was in the Oval Office but they lacked Senate votes to achieve it, Republicans will urge a quick confirmation. Having the votes, they’ll probably be able to accomplish it.

There’s either no hypocrisy or absolute hypocrisy on the matter, depending on your philosophical bent. Either way it’s end-justifying politics over principled means. And the primary reason is because liberal Democrats worry that without SCOTUS dictates on issues like abortion, they can’t muster sufficient votes to preserve the status quo.

We didn’t need a Supreme Court ruling to end slavery, declare suffrage rights for Blacks and women, approve an income tax, or set the legal age for voting. We changed our Constitution through the amendment process, which ensured national solidarity since three-fourths of the states through their duly-elected legislatures supported the changes.

Not that activists didn’t try, of course. Throughout our history impatient radicals have recognized and sought the expediency of persuading a half-dozen people, rather than the populations of 30-something states. But until about 50 years ago, most SCOTUS justices subscribed respectfully to a more restrictive separation-of-powers school of thought.

If the people, and plaintiffs bringing suit, didn’t like what Congress or their state assemblies were doing, their remedy lay at the ballot box — as long as the legislative bodies weren’t acting in violation of any constitutional principle.

Once some justices started viewing the Constitution as a catch-all enabling device, it was catnip-on-steroids to special-interest radicals. Why wait through years of testy, messy elections in all the different states, when five “yeas” on the Supreme Court could settle an issue instantly (and quash further legal debate)?

But a formula designed to bypass the democratic process is toxic to liberty. When the “law of the land” isn’t really a legislated statute, but only a handful of justices’ decision, it doesn’t deliver government by the people and with consent of the governed. The fact that such toxicity has reached a boiling point isn’t all bad. It’s just time to detox.

Part of the cause for resulting conniptions among Democrats is shoe-on-the-other-foot syndrome: Until recently they had become accustomed to dominating the Senate’s confirmation process, especially in “divided government” scenarios where leverage can force compromise.

Democrats have controlled the Senate for 43 of the last 65 years, including one continuous span of 26 years from 1955 to 1981. Since 1955, there have been 36 nominations to the Supreme Court, and 15 of those were from Republican presidents asking Democrat-led Senates for confirmation. Only once in all those years has a Democratic president had to ask a Republican Senate for confirmation, and before Obama the last time that happened was in 1895.

Fortunately for liberals, the turning tide on the high court isn’t as dire as they fear. Conservative justices inherently oppose legislating from the bench, and prefer to send issues that fall outside the purview of the Constitution back to the people and the states to figure out.

The most important Supreme Court reform we need is in our mindsets. We must stop asking the judiciary, which can only hand down discord-inducing yes-no decrees, to make law.

An aid in that effort will be appointing justices committed to judicial restraint.