Mark Franke: Supreme Court: A thankless job

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I wouldn’t want to be on the United States Supreme Court even if I were qualified. It seems those poor justices can’t even come close to Abraham Lincoln’s observation that you can please some of the people all the time let alone all the people some of the time.

It begins with their confirmation hearings which are nothing less than public campaigns of character assassination reminiscent of the Salem witch trials. Somewhere, sometime in your past you may have done something that can be blown out of all proportion by the current mob of self-appointed puritans residing in the U.S. Senate and the national media. No matter if it is true or not. Just ask Brett Kavanaugh.

It doesn’t end with your confirmation. The witch hunters are still trying to salvage something out of those false accusations to impeach Justice Kavanaugh now that he is serving. No matter that the FBI debunked them quite handily.

They can’t impeach all the justices they don’t like, so Plan B is to stack the court with an adequate number of tame justices to override the current majority. That ploy has a mixed history, the most recent incident being a stain on the FDR legacy.

Then there is the occasional oral threat to rule my way or else by the current egotist-in-chief residing on Capitol Hill. This usually receives immediate rebukes from the civility-minded, which provides a modicum of encouragement for the future of our republic.

I suppose the justices have developed tough skins for this kind of bare knuckles political discourse. The Constitution does insist they serve for life so they can shrug it off, at least publicly.

But it must hurt when their putative supporters turn on them after one or two decisions which don’t pass muster. Social conservatives are disappointed that the new conservative majority on the court hasn’t aggressively reversed much of the unfortunate decision-making during previous terms. Judicial activism, so rightfully deplored when exercised by liberal judges, is now expected from conservative judges as a matter of political payback. It’s the adult version of the schoolyard defense, “He did it first.”

There is even a philosophical fig leaf for this kind of thinking, called “common good originalism.” Developed among Roman Catholic conservative thinkers, it sets moral law above the Constitution. I’m all for moral law but the other side has its opinion of what is moral and what isn’t, and I don’t like their opinion. What is to protect the rest of us from a temporary majority trampling our rights in the name of a specious morality?

For conservatives to use their current court majorities at the Supreme Court and at the district level is “the end justifies the means” kind of thinking. It is short sighted in that the other side will have their day as well. It is hypocritical in that it is being advocated by some, like the common-good originalists, who should be supportive of what the Constitution actually says. And it will ultimately fail.

One can’t help but wonder if some of our conservative brethren oppose an activist judiciary only when it rules the wrong way. Understand the point here: these conservatives want the judiciary to legislate rather than review, just like progressives demand.

Judicial activism should be abhorred, unless one uses the definition suggested by George Will in his recent book, “The Conservative Sensibility.” I was shocked when I first read in the book that he argues for more judicial activism, which I thought was the last thing that thinking conservatives wanted. Then I finally understood what he is proposing. The courts, in Will’s opinion, should be quite active in reviewing laws and executive branch actions to ensure they comply with the Constitution. His concept of judicial activism is not to be a de facto legislature but to act as the brakes on legislative and executive overreach.

To do this, the justices absolutely must review cases strictly as they are presented. Ofttimes this produces a narrowly worded opinion that stays within the confines of the case they heard and to the disappointment of those who wished for a broader decision. Individual cases should not be viewed as invitations to trespass on legislative prerogatives. We are suffering from too much of that kind of judicial activism.

Justice Anton Scalia, a hero to many originalists, made the point succinctly in a 1992 dissent. “Value judgments… should be voted on, not dictated.”

It doesn’t require a Ph.D in constitutional law to understand that is what the Founders had in mind by assigning legislative authority to Congress, executive authority to the President and a referee function to the Supreme Court. John Marshall got it exactly right in his Marbury decision.

We either believe in the Constitution or we don’t. I do.

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne. Send comments to [email protected].