What might it mean to have five justices on the Supreme Court who were appointed by Democratic presidents?
That’s the question that constitutional law professor, and liberal scholar, Erwin Chemerinsky asked in a editorial for The Atlantic this week. And, well, the answer is chilling.
In a section Chemerinsky entitles “Dreaming,” the professor writes:
The possibility of five or six Democratic justices allows one to imagine what might be done in other areas. Might the Court find a constitutional right to education and conclude that disparities in school funding violate the Constitution? Might the Court find that the racial injustices in the criminal-justice system violate equal protection? For so long, progressives have had to focus primarily on keeping the Court from overturning precedents and limiting rights. Justice Scalia’s death and the coming presidential election allows liberals to dream of how much a different Court could do to advance liberty and justice for all.
Chemerinsky makes the Court sound like a spelunker, probing the unknown depths of the Constitution to “find” new rights that haven’t previously been glimpsed by human eyes. To pursue this course is to drop even the pretense of judicial restraint and dive headlong into the role of an unelected legislature, incapable of passing laws, but fully empowered to define existing laws in whatever way they would like.
This, to put it mildly, is everything that Justice Antonin Scalia fought against.
“Hubris is defined as overweening pride; and pride, we know, goeth before a fall,” Scalia wrote in a recent opinion. “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.”
And yet, as Chemerinsky informs us, the Left is not reminded of their impotence. Instead, they are deluded by their false sense of omnipotence. As David French writes for National Review:
To many on the Left, the entire apparatus of government should serve the interests of social justice, regardless of its constitutionally-delegated role. When legislatures “fail,” then regulators pick up the slack. When regulators fail, then the Court takes command. Chemerinsky is “dreaming” of a post-constitutional Supreme Court.
But Scalia was far from alone in believing in the bright line limits of the Court’s power. For instance, in the Federalist Papers, Alexander Hamilton writes that the judiciary “from the nature of its functions, will always be the least dangers to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
“[The judiciary] it may truly be said to have neither force nor will, but merely judgment,” Hamilton wrote; and must ultimately depend on upon the aid of the executive arm even for the efficacy of its judgments.”
And yet here we sit, eight months before a presidential election, and we’re being told that appointing the right justice may be more important than electing the right president because of a justice’s ability to impact law over the course of a lifetime, rather than an eight year term. This isn’t just backwards, it’s dangerous. It threatens the foundations of our Constitutional system, rooted in a meticulously drawn vision of checks and balances intended to empower voters within the confines of a Constitution.
But, as Thomas Jefferson warned, those confines mean little if they can be re-drawn with the swipe of a judicial pen.
“Our particular security,” Jefferson wrote, “is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
Sadly, that is exactly what Chemerinsky, and other liberals who think like him, propose to do – to treat the Constitution as a mad lib, with gaps to be filled in based on their inability to accomplish their legislative aims. In that sense, Chemerinsky honestly answered the question he posed, but we must hope that voters don’t accept it.