President Donald J. Trump looks on as Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, swears in Judge Brett M. Kavanaugh to be the Supreme Court’s 114th justice Monday, Oct. 8, 2018, in the East Room of the White House in Washington, D.C. Justice Kavanaugh is joined by his wife Ashley, holding the Bible, and their daughters Liza and Margaret. (Official White House Photo by Joyce N. Boghosian)
At The Federalist, Ryan Fazio explains how the Supreme Court, now solidly in conservative hands, is the arbiter constitutional interpretation. The political left is attacking the court’s legitimacy because it has no other avenue to do so. Fazio warns though that one “ill-advised alteration” to the constitution could upend everything. He writes (abridged):
Concerted opposition to the independent judiciary has begun to percolate on the left with little scrutiny. Last week, Democratic National Committee Chairman Tom Perez, Hillary Clinton’s former spokesman Brian Fallon, and Democratic Rep. Ro Khanna rallied activists seeking to enervate judicial independence through proposals like court-packing and term limits for justices.
After decades of conscious intellectual and political pushback from conservatives, progressives’ ability to achieve their policy ends through the courts was stalled by a critical mass of textualist justices. Constitutional limitations on federal overreach were fortified in commerce clause cases, like Lopez and Morrison, First and Second Amendment cases, like Citizens United and Heller, Tenth Amendment cases, and others. But the first four of these cases, for example, rested on a knife’s edge with only five-vote majorities. That fact weighed heavily on voters’ minds during the 2016 election, with a seat vacant after Justice Antonin Scalia’s sudden death.
When the powers of law making, enforcement, and review are combined in the same body, it sets the necessary predicate for tyrannical abuse of power. It becomes not a question of if, but when the abuse will occur. Although the judiciary has the least potent prerogatives, wielding neither sword nor purse, as Hamilton wrote, its negative check on those with the sword and the purse is necessary to the preservation of liberty.
The Constitution is more than just the sum of its parts. Even one ill-advised alteration could render much of its rest futile. If the most radical elements of the political left metastasize, the integrity of America’s political inheritance will be in jeopardy.
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