Supreme Court Justice Antonin Scalia is promoting his new book like there is no tomorrow. Among the flurry of similarly worded presentations, the Associated Press picked up a point he made in a speech to the American Enterprise Institute:
Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.
“It is very difficult to adopt a constitutional amendment,” Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.
I agree. It echoes my observation that the German constitution is much easier to change, making it a living constitution and certainly easing the interpretative burden on the highest court.
The elected executive and legislative branches have a legitimate interest to update constitutional law according to the people’s evolving moral standards. Right now, that interest is funneled into an unproductive fight over judicial nominations, trying to exert indirect influence over the Supreme Court.
It would lead to a much more healthy discourse, and probably to better and more bipartisan judicial nominations, if there was a workable approach (and thus an obligation) for the legislature to discuss and decide these issues directly.
Whatever people think of Scalia’s political views (uh, philosophies), the consistency of his views is always refreshing.
“Why are candidates silent on Supreme Court?” wonders CNN’s Senior Legal Analyst Jeffrey Toobin. He, too, seems to have noted the absence of the Supreme Court as a presidential campaign topic.
But while I did at least offer a feeble explanation rooted in my unwavering belief in chief justice John Roberts’ political mastery, Toobin’s write-up doesn’t even attempt answer his own question.
And what’s worse, he tries to evade the non-answer by modulating his question into a non-question:
With a little more than a month to go, it’s not too late to ask the candidates to take a stand on their plans for the court. […] [W]hat does Obama, a former law professor, think about the court? […] [D]oes he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.
By the same token, what kind of justices would Romney appoint? Who are his judicial role models?
Really? These are the questions we need to ask?
I mean, it’s fine for politicians to pretend that the Supreme Court is apolitical. But the fact is we all know which kind of justices Obama or Romney would nominate. It’s so obvious is doesn’t even make for a rhetorical question.
Toobin is right, though, that the electorate seems painfully oblivious to the consequences of these choices.
So we don’t have to ask the candidates which kind of justices they would appoint. We have to ask the public what kind of Supreme Court they want for the next 30 years.
If it was the intention of Chief Justice John Roberts to get the Supreme Court out of the line of fire with his health care ruling, he sure succeeded. The Republican and Democratic conventions are over, and I do not recall a single mention of the critical importance of future Supreme Court nominations.
It was refreshing to see, of course, that the Democrats finally embraced their health care law, rather than being scared of their own courage, as they usually appear. President Barack Obama indeed used the narrow chance that Roberts’ ruling had offered him.
Still, I was surprised that Obama did not even indirectly refer to the need for occupying the White House in order to avoid losing the Supreme Court.
After all, many on the left seem disappointed with Obama’s lack of ideological purity, and the resulting lack of voter turnout can be a decisive factor in the election. One of the few reasons for these people to still wish for Obama’s victory should be the horrors that a solidified conservative majority on the Supreme Court would mean to them.
The Republicans, too, refrained from any Supreme Court agitation. Branding Roberts as a left-wing traitor and pointing to the need to appoint more severe conservatives is apparently not considered opportune. Or maybe the prospect of four more years of an Obama administration causes enough horror to energize the Republican base.
So it appears that people get all worked up when the Supreme Court makes decisions they don’t like. But when it comes to electing a president who decides the court’s future, they are more concerned about the proper treatment of the candidate’s dog than about which people he would appoint to the court.
I stand corrected. Supreme Court Justice Antonin Scalia went on Fox News Sunday saying: “I don’t think the court is political at all”.
He conceded, though, that people might have that impression, but that’s because of how the justices are selected – for their “judicial philosophies”. Republicans choose “originalists and textualists and restrained judges”, Democrats choose “the opposite, people who believe in Roe v. Wade”.
So justices don’t vote their politics, they vote their philosophies. Fine. There is no reason not to take Scalia’s word for it.
Whether, however, at the level of the Supreme Court there is any significant different between philosophy and politics, would be an interesting conversation. Both are fundamentally about values, after all.
What is clear, though, is that there is no lack of political skills on the Supreme Court. To make his colleagues choose between either being an “originalist” or being “pro-abortion” is such an artful form of slanting, that I once again tip my hat to Scalia.
Some assert that a formidable jurist like Chief Justice John Roberts would never be guided by anything but his constitutional scholarship. That is, after all, what we expect from a Supreme Court justice. But more plentiful and more thrilling, of course, were the opinions on the health care ruling that had Roberts in turn furthering, fearing, or sabotaging a liberal, conservative, or neutrality agenda. | More →
Last week’s health care ruling by the United States Supreme Court had many commentators arguing whether the decision was a proper discharge of judicial authority, or if it had been tainted by political considerations.
This question, laced with speculation of court intrigue and outside pressure, seems rooted in an eternal concern Americans have with their Supreme Court. | More →