Who Rules? Courting with Power

supreme court building

Looking in from across the pond, it occurs to me that the 2016 election has more at stake than we have seen, or will see, for a very long time. I don’t mean that because the Libertarian Party has its biggest ever opportunity to make gains (or even, if an opinion piece in the July 21st 2016 issue of the Denver Post is to be believed, win the presidency). I mean it because the next president will likely have multiple Supreme Court of the United States (SCOTUS) picks.

Currently, there is one vacancy on the Supreme Court: the vacancy left by the untimely death of the originalist Justice Antonin Scalia in February of this year. However, with two Justices in their 80s, and two more in their late 70s, the next president is likely to have a considerable number of SCOTUS nominees – and Supreme Court Justices are more powerful than the President.

Wait, that’s absurd! How can you say such a thing?!  Hear me out. Firstly, SCOTUS Justices are life-long appointments. Much like rounded off screws (my DIY is not going well!), once they’re in, they’re hard to get out. Justice William Douglas, appointed by Franklin Roosevelt in 1939, sat on the bench in the Supreme Court for no less than 36 years and 290 days. To put that in perspective, not only were his buttocks likely very sore, but 8 presidents served alongside him. The longest serving current Justice, Anthony Kennedy, was appointed by Ronald Reagan. Secondly, the Supreme Court is just what its name suggests: Supreme. Whereas in many countries, like the United Kingdom, the democratically-elected body is supreme, the US Justices can overrule even Congress and the President. Checks and balances not evenly distributed enough, perhaps? In any case, the Supreme Court’s word is final, which gives it incredible political power to enact change. The most recent example of this is the 2015 Obergefell v. Hodges case in which the Supreme Court legalised same-sex marriage, perhaps in c. 1832 Jacksonian fashion, contrary the will of several states. More famously in Roe v. Wade, the Supreme Court struck down states’ rights to ban abortion outright, and from thereon in often thwarted state attempts to limit it. For some, the Court was engaged in judicial activism, legislating from the Bench.  For others, including Justice Anthony Kennedy, “[a]n activist court is a court that makes a decision you don’t like.”

In any case, what the United States has is a court, answerable to no-one in practice (since no Justice has ever been impeached by the House of Representatives and the Senate), whose members effectively have life tenure, and who can overrule the states, Congress, and even the President if it deems their actions unconstitutional. The President must wave goodbye after 8 years in office at the most, and Congress – as President Obama is often finding – can be a thorn in the President’s sides, undermining them and overturning them. Ah, checks and balances done properly!

Libertarians, then, being conscious of powerful authorities, must bear in mind the Supreme Court when they vote in the presidential election. The next President’s SCOTUS picks can make decisions that could be irreversible for a generation. By the end of the next presidency, Roe v. Wade could be overturned, or it could be cemented in place for decades to come, for example. When libertarians go to the ballot, they must bear in mind that they are not only electing a president for 4 years, but they are potentially selecting Supreme Court Justices for the many years ahead. Do you trust Hillary to make those appointments? Trump? Stein? Do you trust Gary Johnson?

In light of the immense power of the Court and the longevity of its members, libertarians ought to be asking: How does one minimise government power, even that expressed through the SCOTUS? Dare I, as a Brit, venture to offer a policy suggestion for America? If so, it would be to fight for a constitutional amendment to impose term limits of 12 years on the SCOTUS Justices.  So long as Justices are nominated by presidents, the choices will be highly politicized, and Justices need to have greater checks on their power. Term limits will allow Justices to be more routinely replaced, preventing changes that cannot be reversed in a generation.

This is important from a libertarian view. Suppose the SCOTUS rules against religious persons’ right to not bake a cake for a gay wedding, or against the right of a Jew not to bake a swastika cake (credit to former Libertarian Party presidential candidate Austin Petersen for this example), what is to be done if the Justices remain at the bench for another twenty or thirty years? There is nothing that can be done. That is not to say the Supreme Court is not without any limitation, because it does have limits, but the Supreme Court is, ultimately, Supreme. A libertarian president couldn’t reverse the decision. Congress? No, a libertarian Congress couldn’t either, unless it amended the Constitution (such as in the case of the 11th Amendment) or amended the law (such as in the 2007 ruling of Gonzales v. Carhart which upheld the Partial Birth Abortion Ban Act of 2003 ‘against’ Roe v. Wade). In the words of MSNBC’s Rachel Maddow when Marco Rubio protested that Congress could overrule the Supreme Court if it deemed the Court’s decision unconstitutional: “They decide what’s constitutional. That’s how our government works.”

Libertarians should attempt to minimise political power, including the power of the SCOTUS. Power should, insofar as is feasible, reside with the individual. The Court undoubtedly serves a profoundly important purpose, but if the allegations of legislating from the Bench are true, then it proves the Supreme Court is an especially dangerous institution. Their rulings can affect every state, every American, and they cannot be removed from office (except in cases of impeachment). The next president will likely pick several Justices: think carefully on what your vote means for the composition of the SCOTUS, and think carefully about what the Supreme Court’s limits should be.

* Matthew James Norris is an aspiring historian and philosopher, currently researching the fiscal problems of Henry III of England’s reign.

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