Some conservatives now believe that, with Brett Kavanaugh’s confirmation to the Supreme Court, the judicial branch may be brought into balance with the legislative and executive branches of government rather than dominate them. This is a false reassurance, and a dangerous one at that.
Even if Kavanaugh turns out to be a tremendous originalist justice, the courts still represent a major threat to the republic. The combination of flawed jurisprudence and runaway district courts will continue to undermine the will of the people despite this strong replacement for Justice Anthony Kennedy.
Today’s Lack of Constitutional Jurisprudence
Celebrated Republican appointed Judge Richard Posner said in November 2015 at the Loyola Constitutional Law Colloquium: “I’m not particularly interested in the 18th century, nor am I particularly interested in the text of the Constitution, I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.”
This mentality is commonplace amongst our major legal universities, where more importance is placed on judicial decisions than on the Constitution itself. Former attorney general Ed Meese has pointed out, “In almost two hundred years, it (the Supreme Court) has produced nearly 500 volumes of Reports of cases. So, in terms of sheer bulk, constitutional law greatly overwhelms the Constitution. But in substance, it is meant to support and not overwhelm the Constitution hence it is derived.”
These 500 volumes of work are precisely what many law schools give utmost importantance to today instead of the Constitution itself, creating an environment Judge Robert Bork describes as where “What the students learn, to put it bluntly, is that legal reasoning of the sort that served us for centuries is now utterly outmoded, and a verbal formulation can always be devised to reach the correct political result.”
Instead of non-political judges focused on applying statutes as appropriately as possible, we see judges emerge from the most elite law schools driven to use their most creative mental gymnastics to create a certain political effect.
The Great Difficulty in Finding Originalists
The popularity of jurisprudence grounded more in political opinion than the original text of the Constitution is precisely the reason that even the most conservative of presidents have found great difficulty in finding true originalists for the court. Bork also spoke to this difficulty:
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
His observation is just as true today as it was in 1996.
While many conservatives have been optimistic about the potential for President Trump to replace Justice Ruth Bader Ginsburg, there is also a chance Justice Clarence Thomas may not serve much longer. Thomas, like Scalia, is nearly impossible to replace on the court. Obviously both men share an incredible intellectual prowess and understanding of our founding documents; they have also proven not to be affected by the political winds.
As Ron Desantis said about Scalia, “Perhaps the most important quality for a constitutionalist Supreme Court justice is something that Scalia demonstrated in spades: backbone. There will be times when the proper reading of the Constitution will diverge sharply from the conventional wisdom of D.C. elites, the legacy press and the legal intelligentsia. Scalia never wilted in the face of intense criticism; indeed, he reveled in it, as it was a sign that he was properly discharging his constitutional duty.”
This proves to be especially difficult given the supposedly sacrosanct theory of stare decisis.
What’s Wrong With Stare Decisis
Legal scholars attempt to provide stability in jurisprudence by adhering to the theory of stare decisis. Stare decisis is Latin for “to stand by a decision.” Its importance in law is quite clear. There should be consistency in the way the law is applied. Society should have confidence that decisions rendered by judges are generally uniform. If laws were applied in completely different manners, it would erode respect for such laws.
This consistency is important, but what if a wrong precedent is set? Would judges later break with bad precedent? In cases dealing with a statute or common law, if a judge sets a bad precedent or applies the law inconsistently, the legislature could always come back and write a statute that remedies the problem. If the Supreme Court sets a bad precedent when dealing with constitutional matters, how is it to be remedied?
If justices strictly adhere to precedent, it could take decades until the American people are relieved of the court’s terrible decisions. When the 1896 Plessy v. Ferguson ruling described racial segregation as constitutional, it took five decades before Brown v. Board of Education overturned the decision. While finding justices who are driven to determine the underlying meaning of the Constitution, it is equally important to find justices who are willing to overturn bad precedent or the perversion of constitutional principles will continue.
The Problem with District Courts
Even if there are multiple Supreme Court judges willing to overturn decades of bad precedent, there is another major judicial issue that may not be remedied: the lawlessness of the lower courts. Attorney General Jeff Sessions and Justice Thomas have both warned of the dangers of nationwide injunctions from the lower courts.
For months these district judges keep the executive branch from performing its executive duties. As Sessions points out, there were no nationwide injunctions for the first 150 years of American history. Fast-forward to now and President Trump has already faced 22 such injunctions. Thomas adds in his opinion in Trump v Hawaii, “Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief.”
Both Thomas and Sessions bring up the added problem with nationwide injunctions: forum shopping. The American Civil Liberties Union and other left-wing organizations simply find the most progressive judges in the country and have their cases heard there. Congress should move immediately to pass Rep. David Brat’s bill to prevent district judges from making these nationwide injunctions. This bill would prevent one of the 600-plus district judges from controlling nationwide policy.
Courts Were Never Intended to Control National Policy
Alexander Hamilton explained in Federalist 81 that judicial encroachments would be a “phantom” and could “never be so extensive as to amount to an inconvenience.” He went on to explain that “This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.”
The courts were never designed to have the ability to shape national policy. This has been readily understood until the last several decades.
Scalia made the following warning in his dissent in the Obergefell v. Hodges case: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
We have reached the moment the courts should be reminded of their impotence in relation to national political policy.