Trump's Chance to Check the Court
Last week, Justice Kennedy gave notice to President Trump that he will resign from the Supreme Court. Within moments of the news becoming public, a collective shriek of anxiety was heard from many left-leaning Americans who believe that Justice Kennedy has been a brake against members of the court who, in their view, are anxious to halt “progress” on a host of hot-button social issues.
Their representatives in Washington are equally vexed. In a fundraising letter, Representative Keith Ellison, a Democrat from Minnesota, wrote that Republicans are trying to use the court to “jam any racist, xenophobic, ugly policy down the throats of the American people.” Senator Chris Murphy, a Democrat from Connecticut, said, “We need all hands-on deck to stop the Court from taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn.”
This agitated reaction reflects a belief held by many on the Left and more than a few on the Right that the Supreme Court is a kind of super-legislature. This is wrong. The members of the Supreme Court are not oracles in a temple of Vermont marble awaiting requests for guidance on the great moral questions of society. The justices are humans. They have biases, blind spots, foibles, and pet peeves. On their best days, like all of us, they may still get things wrong. That’s why the Founders were brilliant in creating a nation built on laws, not the views of nine men and women.
In creating a nation of laws, the Founders understood that the most effective way to restrain the federal government and ensure individual liberties was to have a written constitution that divides power among the three branches and reserves significant power to the states. The Constitution gives Congress the power to make the law, the president the power to execute the law, and the federal courts the power to interpret the law. In this arrangement, a federal judge’s powers — even a Supreme Court justice’s powers — are limited in comparison to those of the president or members of Congress.
There is a logic to all of this. The members of Congress responsible for making the law are the most accountable to the voters. We can throw out the entire House of Representatives and one third of the Senate every two years. The judges of the federal courts are the least accountable to us. They enjoy lifetime appointment. It is extremely dangerous when federal judges and members of the Supreme Court, who are insulated from the will of the people, decide what the law should be.
It is also unconstitutional; deciding what the law should be is Congress’s job. Judges are limited to interpreting the law. And as Justice Scalia well understood, the safest way to interpret the law is to consider carefully what the text of the law says and what was meant by that text when it was written. To do anything else requires a judge to substitute his or her own judgment for that of the legislature and in turn the people that elected those representatives.
Whether you are on the Left or the Right, the best protection of the liberties we enjoy as Americans are courts that interpret rather than create law. And, when the law or even the Constitution needs to change — as it has 27 times through amendments — the people, not federal judges, are able to direct that change through their representatives.
There’s an old story among lawyers that was told by our professor on the last day of our constitutional law class. Judge Learned Hand and Justice Holmes were parting after a lunch together, and Hand said to Holmes, “Do justice, sir, do justice!” Holmes responded, “That is not my job. It is my job to apply the law.” My professor suggested that the wrong man was appointed to the Supreme Court. My professor was dead wrong. President Trump should appoint someone that will apply and interpret the law as it is written.
The president has made significant progress moving the federal courts back to their proper role with a record number of circuit court nominees and the appointment of Neil M. Gorsuch to the Supreme Court. He now has a chance to appoint someone who, like Gorsuch, understands that the role of a justice is relatively modest in the grand scheme of our democracy. But, by playing that modest role as a judge rather than a legislator, he or she can nevertheless make a significant contribution to protecting the liberty that the Constitution enshrines.
Matthew R. A. Heiman is a vising fellow at George Mason University’s Scalia Law School. He is a former lawyer for the Department of Justice.
