US Supreme Court: striking a balance

Reader feedback at end.

This essay is adapted from a talk to the Conservative Caucus of Delaware on July 18, including adjustments based on an interactive discussion with a well-informed and attentive audience. Yours truly was honored to participate in this event.

The talk covered some background information about the Supreme Court, highlights of the SCT’s just completed term (2017-18), and the confirmation battle that is now raging.

The politicization of the SCT’s role and staffing process seems unfortunate, but it’s unclear how the situation could be remedied. What steps would you readers recommend?

I. Separation of powers - The founders didn’t trust political leaders to behave themselves, so they divided the power in the federal government between three branches with distinct but overlapping functions: (A) Congress makes the laws, controls spending, and can impeach the president or other officials; (B) the president runs the government, can veto legislation & appoint judges (with Senate confirmation); and (C) the SCT rules on constitutional and other legal questions.

If one of the branches of government went rogue, the thinking went, one or both of the other branches could counteract its influence. No doubt many readers remember these checks and balances from 9th grade civics, but are they still being effectively taught in US schools? Americans’ knowledge of the branches of government is declining,,

The survey, released for Constitution Day (Sept. 17), found that 26 percent of people can name the three branches of government (executive, legislative and judicial), a statistically significant decline since 2011, when 38 percent could name all three. In the current survey, 31 percent of respondents could not name any of three branches, about the same as last year.

2. SCT mission – Under Article III of the Constitution, the judicial power of the United States is vested in one Supreme Court. The judges appointed to the SCT (now known as justices) shall hold their Offices during good behavior and receive Compensation for their services that shall not be diminished during their Continuance in Office.

Original or appellate jurisdiction of the SCT shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States and Treaties. It applies to controversies in which the United States will be a party, and to controversies between two or more states, a state and the citizens of another state, or citizens of different states.

This left many details to be decided by Congress, including the makeup and jurisdiction of inferior federal courts and the number of SCT justices.

3. Facilities -Every organization needs a home base, and the SCT’s headquarters is located at 1 First Street, NE (directly east of the US Capitol).


This building looks like a Greek temple, with a broad staircase and high columns, but the front entrance is normally closed. Visitors go in by a side entrance, which is far less imposing, and they must pass through a security checkpoint. Counting justices, law clerks and support personnel, there are probably some 150 regular occupants of the building – so it’s not exactly densely populated.

4. Personnel – Six SCT justices were appointed initially, but Congress later increased the number (until 1891, SCT justices spent part of their time “riding circuit” in judicial districts around a growing country) – reduced the number from 10 to 7 during the presidency of Andrew Johnson – and increased it to 9 when Ulysses Grant became president. Since 1869 there have been nine justices (subject to periodic vacancies). How many Supreme Court justices are there? Martin Kelly,, 1/26/18.

Was there a conscious decision to switch from an even to an odd number of justices or did things simply work out that way? Who knows, but the current number is fortuitous in that it minimizes the probability of tie votes. The SCT is narrowly divided on many issues that come before it, and has handed down numerous 5-4 decisions in recent years.

Being a SCT justice is a great gig. Interesting work, luxurious surroundings, stimulating colleagues, 3 months of vacation a year (July-September), and for those who want it a job for life. There are currently eight justices on the bench, appointed by five different presidents and confirmed in the years indicated:

GEORGE H. W. BUSH: Clarence Thomas (1991)
CLINTON: Ruth Bader Ginsberg (1993), Stephen Breyer (1994)
GEORGE W. BUSH: John Roberts (2005), Samuel Alito (2006)
OBAMA: Sonia Sotomayor (2009), Elena Kagan (2010)
TRUMP: Neil Gorsuch (2017)

5. Two theories re SCT’s role – In applying provisions of the Constitution (and likewise statutes and treaties), the SCT must necessarily determine what the applicable provisions mean. This can be done by (a) attempting to discern what was intended or understood to be the meaning when the provision was written, or (b) treating the Constitution as a “living document,” which should be interpreted and applied in a way that will harmonize with current circumstances. Here’s a conceptual comparison of the two approaches:

Screen Shot 2018-07-21 at 4.41.25 PM

Neither theory is entirely satisfactory, and with all due respect to “originalists” the best approach lies somewhere in the middle.

There are times when new thinking is imperative, as when the SCT (unanimously) put paid to the holding (Plessy v. Ferguson, 1896) that segregated schooling was constitutional if the schooling was “equal.” Brown v. Board of Education,

The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal. [Page cites omitted]

If used too often, however, the “living document” theory could reduce the Constitution to an historical relic.

6. Legislators in Robes? - Inevitably, court decisions – no matter how astute the legal reasoning may seem – involve political considerations. And as the following examples will show, this is no less true of SCT rulings than of lower court rulings.

Who says that only the SCT gets to decide what provisions of the Constitution mean and therefore that it should rule on the constitutionality of laws enacted by Congress? One might certainly debate the point, but the power of “judicial review” was claimed in Marbury v. Madison,
1803, and has been exercised (at least in theory, there have been some setbacks in practice) ever since.

Consider how President Andrew Jackson permitted the state of Georgia to flout an 1832 Supreme Court ruling (although Jackson hadn’t been ordered to do anything, he didn’t like the ruling) – but responded decisively a few months later when South Carolina proposed to defy a federal edict. Was it legal for Andrew Jackson to ignore a Supreme Court ruling, Eleazar Bryan,,

And in 1937, after FDR threatened to appoint as many as six additional SCT justices, several of the sitting justices stopped supporting use of the enumerated powers doctrine to strike down New Deal programs. When a switch in time saved nine, A. Frank Reel, New York Times,

As though to compensate for adopting a lower profile in the economic area, the SCT has become more active in weighing in on social issues. Notably, rights have been recognized that aren’t mentioned in the Constitution, and for all the learned legal discussion it’s been pretty clear that these decisions were being driven by perceived changes in social mores/public opinion. Here are some notable examples:

•Griswold v. Connecticut,
1965, recognized a right to sexual privacy, thereby preventing enforcement of a state ban on the use of contraceptive devices. The opinion includes the assertion that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

•Roe v. Wade,
1973, recognized a woman’s right to terminate an unwanted pregnancy under the applicable circumstances, albeit expressly declining to declare this right to be absolute or to reject the possibility of valid state regulations in the area. In subsequent cases, however, the right to abortion has been upheld without significant restrictions.

•Obergefell v. Hodges,
2015, recognized a right to same sex marriages. The prevailing opinion (by Justice Anthony Kennedy) acknowledged that the subject was controversial and that caution had been urged by many, yet concluded that there had been more than enough debate and proposed legislation and the time had come to act on the matter. And by way of consolation for critics, those who opposed same sex marriage on religious or other grounds could continue to exercise their 1st Amendment rights and speak out against it. There were four dissenting opinions, strongly reflecting the opposition of the justices in the minority.

Finally, the SCT cannot review all of the lower court rulings that are handed down so it must necessarily choose which appeals to consider and which to ignore. The choices made represent another facet of largely unaccountable discretion.

7. Confirmation Process – It sounds pretty straightforward. The president nominates justices with “advice and consent” of the US Senate, which presumably conducts a businesslike review of their professional qualifications. Barring evidence of a problem, members of the Senate have traditionally been inclined to go along without asking a lot of probing questions.

Given the potentially vast political impact of SCT decisions, however, there has been growing interest in the political leanings of SCT nominees and confirmation reviews have become increasingly acrimonious. Here are some of the milestones in this trend:

•Justice Abe Fortas faced a confirmation hearing when LBJ nominated him to replace Earl Warren as the Chief Justice. Prompted by rumors of Fortas’s close association with LBJ, Senate Conservatives mounted a successful filibuster of the chief justice nomination. When evidence of unethical conduct subsequently surfaced, Fortas stepped down from the SCT to avoid impeachment. Abe Fortas resigns from Supreme Court May 15, 1969, Andrew Glass,,

In 1966, Fortas took a secret retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client subsequently imprisoned for securities violations. The deal provided that in return for unspecified advice, Fortas was to receive $20,000 a year for life.

•Robert Bork’s nomination was blocked in 1987 based on his conservative views, which were a matter of record and which he hadn’t attempted to conceal. One of the consequences was the addition of a new verb (“bork”) to the English language. Senate rejects Robert Bork for the Supreme Court,,

•Clarence Thomas’s nomination in 1991 was threatened by 10-year-old allegations of sexual harassment, which appeared to be politically motivated. He was confirmed after an agonizing personal ordeal, but just barely. My Grandfather’s Son, Clarence Thomas,

•Merrick Garland’s nomination by an outgoing president was ignored by Senate Republicans in 2016 on grounds that it should not be taken up before the presidential election. The nominee wasn’t personally attacked, but he also didn’t get a hearing let alone a confirmation vote. The gambit paid off for Republicans when Donald Trump won the election.

•Still fuming over how Garland’s nomination had been blocked, Democrats united in opposition to President Trump’s nominee, Neil Gorsuch, in 2017. Senate Republicans had to “go nuclear” to break the resulting filibuster; three “red state” Democrats voted “yes” after it became clear that the nominee was going to be confirmed. Consequences of keeping the legislative filibuster,

8. Highlights of the SCT’s just completed term (2017-18) – GORSUCH IMPACT: In 14 of 15 cases decided 5-4, Justice Gorsuch voted with the majority. He sided with the liberal bloc only once, agreeing that the violent crime definition for deportation purposes was overly vague. After a string of huge Supreme Court wins, will Never-Trumpers admit they were wrong?, 6/27/18.

Here are some of the more important decisions in this set (which might have gone the other way if Merrick Garland had been on the bench):

•Upheld administration’s travel ban, Ohio procedure for purging inactive voters from the rolls, and Texas voting district lines (with one exception) that had been challenged on grounds of minimizing minority influence.

•Held (reversing a 1977 decision) that public sector employees can’t be required to pay “agency fees” to unions.

•Reversed and remanded a decision against a pro-life center in California that suggested a lower level of scrutiny for restrictions on “professional speech” than on speech in general.

Aside from the box score, Gorsuch has been credited with authoring some excellent opinions and engaging constructively with the other justices. He even received accolades from the New York Times. Conservatives in charge, the Supreme Court moves right, Adam Liptak & Alicia Parlpiano, New York Times,

. . . Justice Neil M. Gorsuch, who completed his first full term, turned in the most consequential freshman performance by a member of the Supreme Court in living memory.

And some observers perceived a connection between Gorsuch’s good start and Justice Anthony Kennedy’s decision to retire at the end of the term.

#OTHER CASES: There were also some notable decisions that received a higher than 5-4 vote, including the following:

•States were authorized to impose tax on interstate sales without regard to physical presence in the state (recognized by a 1992 decision). The decision was salutary in that the imposition of such taxes was inevitable to level the playing field between on-line vendors and “brick and mortar” stores, but it may prove burdensome for smaller companies due to the multiplicity of local sales tax jurisdictions (thousands vs. the 45 states that impose sales taxes).

Moral: “nature abhors a vacuum.” Perhaps the fallout from this decision will motivate Congress to enact sensible legislation in this area to harmonize the conflicting interests, as it should have done years ago. Supreme Court decides Wayfair online sales tax case, Joseph Bishop-Henchman,,

All eyes will now turn to Congress and the states. Congress has been stymied between alternative versions of federal solutions: the Remote Transactions Parity Act (RTPA) or Marketplace Fairness Act (MFA), which lets states collect if they agree to simplify their sales taxes, and a proposal from retiring Rep. Bob Goodlatte (R-VA) that would make the sales tax a business obligation rather than a consumer obligation, and have it collected based on the tax rate where the company is located but send the revenue to the jurisdiction where the customer is located. *** [In the meantime, this] ruling is not a blank check for states. The Court specifically observed that South Dakota’s law, and its tax laws generally, minimizes the burden on interstate commerce. Other states should craft their laws accordingly.

•Judgment against a Colorado baker for refusal to bake a same sex wedding cake was reversed on grounds that state authorities had expressly belittled defendant’s religious beliefs. Supreme Court: Be polite when you violate others’ rights, Ben Shapiro,,

Look for more litigation re same sex marriage rights vs. 1st Amendment rights, because it’s definitely coming.

•Partisan gerrymandering (as distinguished from minority influence gerrymandering) decisions in Wisconsin and North Carolina were reversed and remanded on grounds that the plaintiffs had failed to establish a specific injury that would establish standing to sue.

Some saw this outcome as a punt, while others have suggested the partisan gerrymandering theory has been rejected and good riddance. The “punt” that wasn’t, Katherine McKnight, Wall Street Journal,

In Gill v. Whitford, the justices held unanimously that the plaintiffs had failed to show that their individual votes had been impaired. “This Court is not responsible for vindicating generalized partisan preferences,” Chief Justice John Roberts wrote in an opinion all his colleagues joined, which returned the case to a lower court to consider whether the Wisconsin plaintiffs could show their individual votes had been burdened. *** [This decision] presses plaintiffs to make a near-impossible showing.

9. Current Confirmation Battle - The president’s announcement of his nomination of Judge Kavanaugh was well handled, and the nominee came across as an excellent choice. Remarks by the president announcing Judge Brett Kavanaugh as the nominee to the Supreme Court, transcript, 7/9/18.

Almost immediately, however, Democrats united in vehement opposition. By way of example, consider these statements:

•Senate Minority Leader Chuck Schumer made clear that Senate Democrats would go all out to block the nomination. Democrats are absolutely desperate to keep Kavanaugh off the Supreme Court, John Yoo & Robert Delahunty,,

“I’m going to fight this nomination with everything I’ve got,” Senate Minority Leader Chuck Schumer, D-N.Y., said recently, flanked by 10 Democratic members of the Senate Judiciary Committee. Schumer made it clear that his party will do everything short of breaking the law to keep Kavanaugh from taking the high court seat of retiring Justice Anthony Kennedy.

•Sen. Dick Durbin stated (before Kavanaugh’s nomination was announced) that this would be an historic decision and all Senate Democrats should vote “no,” even if they represent “red” states and are running for reelection in November. Sen. Durbin interviewed by Chuck Todd,, video (0:47),

•Sen. Tom Carper of Delaware has characterized the nominee’s record as “extreme” and “deeply disturbing,” leaving no doubt that he will vote “no.” Yet Carper – who has a primary opponent this year – is getting heat from the left because he supported Chief Justice John Roberts in 2005 and voted in favor of Kavanaugh for the circuit court in 2006. Reactions to the nomination of Judge Brett Kavanaugh (various), item 7, Delaware Chatter,

The rationale for opposition is obviously based on political considerations versus the nominee’s capabilities, experience or character. Courts should decide law, not politics, James Thomen, News Journal,

It’s been suggested, for example, that Kavanaugh might:

•Vote to reverse or water down Roe v. Wade. What happens if Roe v. Wade gets overturned? Kimberly Leonard, Washington Examiner,

•Rule in Trump’s favor on Mueller probe issues such as whether a sitting president can be compelled to appear before a grand jury. Delaware Chatter, item 1,

•Support attacks on GovCare. [Sen. Dick] Durbin statement re Kavanaugh nomination,

•Support efforts to gut environmental laws. Environmentalist: “Brett Kavanaugh is the new Scott Pruitt,” John Siciliano, Washington Examiner,

•Favor government surveillance over 4th Amendment rights. Why the Fourth Amendment might matter as much as abortion and healthcare in Kavanaugh’s confirmation, Errin Dunne, Washington Examiner,

Assuming the foregoing predictions about how Kavanaugh might be inclined to vote in future cases are well founded, and some of them seem rather speculative, they aren’t necessarily disqualifying. To the contrary, as attendees at the Conservative Caucus talk made clear, it’s time for a change in many areas – and if the nominee would help to deliver it good for him.

Thus, the group wasn’t about to settle for the suggestion that Roe v. Wade shouldn’t be reversed after half century even if it represented an unwise use of the SCT’s power in the first instance. If the reversal of Plessy v. Ferguson was a “shining moment” in the SCT’s history, why not correct another mistake and declare a right to life for the unborn?

Even if total victory on the issue isn’t in the cards, there would seem to be plenty of room for improvement in the current situation. Can Roe v. Wade be fixed? Adrian Vance,,

Finally, bearing the Merrick Garland precedent in mind, Democrats argue that there should be no vote before the November elections. And to this end, demands are being formulated to demand the production and review of so many documents that the review and production of documents might well take years to complete. Democrats are absolutely desperate to keep Kavanaugh off the Supreme Court, John Yoo & Robert Delahunty,,

. . . [his] extensive government career as a Supreme Court clerk, an attorney on the investigation that led to the impeachment of President Bill Clinton, a senior aide to President George W. Bush, and an appeals court judge - demand the release of every single record that might be relevant to Kavanaugh, including emails.

Who will win. Probably the GOP, if they can manage to stick together for a change. However, they will clearly get NO HELP from Senate Democrats.

10. Taking stock – As discussed, the SCT role and staffing have been deeply politicized. Speaking of original intent, it seems unlikely that the current state of affairs is what the founders intended. It also seems unproductive, raising an obvious question: isn’t there a better way?

One observer suggests that the appointment of justices could be depoliticized by requiring the president to choose the nominee from a slate of candidates presented by an “independent advisory board,” setting a mandatory retirement age of 75 (term limits might be an alternative), and requiring nominations to be considered in a timely manner. America, let Canada show you how to pick Supreme Court justices, David Martin,,

It’s also possible that if Democrats feel they have been shafted, they will propose to expand the size of the SCT in order to catch up when they return to power, or that bipartisan representation on the SCT will be demanded (as is currently the norm for various government agencies, not to mention the state courts in Delaware).

The audience at the Conservative Caucus talk dismissed most of these ideas, with the exception of showing some support for 15-year term limits. Attendees suggested that the SCT has gotten off track by attempting to proclaim and enforce new legal rights, and that the solution is for the SCT to lower its sights and defer to the right and duty of Congress to make the nation’s laws.


# In the case of 4 justices, we can dispense with the notion that they are learned scholars of the law and consider each case without prejudice. That cannot happen when some justices continually vote along political lines. – SAFE director

# Glad you were the scholar in attendance. – SAFE director

# Very good entry. Many rulings etc. that I was unaware of. Sorry to have missed the CC event but we were out of town at two family reunions. – SAFE member (DE)

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