Larry Bradley’s Ezine #401 Why Are We Having the Conflict We Are over the Supreme Court?

Weekly Ezine Number 401

What Is Happening with Election Reform?
Why Are We Having the Conflict We Are Over the Supreme Court?

What Is Happening with Election Reform?
We’re not going to post news happenings this time because of the length of Paragraph 2.
Why Are We Having the Conflict We Are Over the Supreme Court?

Obviously, we have just finished a nasty conflict over a Supreme Court nominee. This Ezine offers some thoughts about why we had such a vicious conflict—and why we will have an equally vicious conflict next time, too.

When I talk to groups, I point out what’s needed to see your vision for what government should be in America become a reality. While simple, the requirements seem to escape all too many of our citizens in making their voting decisions, or even whether to vote at all.

To see your vision become a reality, you need the following (as it relates to the Federal government) in order to set policy, pass laws and approve budgets, as well as nominate judges—

You need a President of the United States who agrees with your vision. Otherwise, you need two thirds majorities in the House and Senate to be able to override vetoes of your legislation.

You need 218 of 435 members of the House of Representatives who agree with your vision.

You need 60 members of the Senate who agree with your vision. (The numbers may vary, but this model applies to your state government, too.”

In sum, a President is not a “boss of bosses” we elect. To do what a President wants done requires the cooperation of the legislative branch and (if necessary) the concurrence of the Supreme Court that the vision’s actions are within the bounds of the Constitution.

Over the years, the Supreme Court has also become involved in these calculations of what is required to make a vision a reality. Although the Constitution doesn’t mandate how the Court will be organized, the country has been settled on having 9 Supreme Court justices for decades now. That means having your vision be a reality requires having 5 justices who agree with your vision. And so having six justices who agree with a vision, especially with lifetime appointments, results in an unprecedented ability to firmly entrench a vision. That means, for example, that if an opposing vision takes control of the other two branches, then a firewall has been set up to keep legislation reversing that vision from taking effect.

Things were not always this way. Lifetime appointments were originally intended to free the justices of political concerns. The hope was the justices would be able to make decisions based solely on the merits of the questions put before them without concern for their job security.

So why do some argue that the current Conservative majority that has been established on the Supreme Court is bad for the country as a whole? Allow me to make another of my sports metaphors to illustrate the answer to my own question. (Again, I apologize for those who have no interest in sports. But I make these metaphors because sports metaphors allow points to be made without raising partisan hackles.)

Sports are big in America and we love the spectacle they provide. But the spectacle and its appeal would be seriously diminished were there not established rules all the competitors agreed to before the competition. Further, those rules would be worthless without referees dedicated to a neutral and consistent application of those rules to the contest they were observing. What would completely wreck the spectacle and its appeal would be to not trust that the officials were not using the rules to ensure that one team prevailed against all others. Several years ago the National Football League had a contract dispute with their officials and briefly used replacement officials. The inconsistency of the replacements’ rulings quickly brought about a settlement before the league’s product was significantly damaged. Imagine, therefore, the impact the suspicion of tainted referees would have.

Herein lies the conflict we’re seeing play out. We have one side concerned they are seeing a brazen attempt by the other side to establish a majority on the Supreme Court who will favor a particular point of view of one side over the other. Rather than seeing a consistent application of the Constitutional equivalent of the rule on pass interference (football), balls and strikes (baseball) or charging/blocking (basketball), one side sees (with justification*) the cementing of blatant judicial favoritism for what they consider to be a warped agenda.

For example, 70% of Americans want abortion to remain legal. Yet a prime reason the most recent nominee was doggedly pushed through, regardless of whatever flaws he might have been seen as having, was because those who sponsored and voted for him felt the candidate could be relied upon to strike down Roe v. Wade at the first opportunity.

In fact, in the book “Culture Wars?” (a book we have listed on our website as recommended reading) the authors plainly establish that a clear majority of Americans have already settled for themselves that abortion should be legal and gay marriage should be allowed. The war continues only because the opponents of those things have managed to seize political power. (In fact, while watching one of Bill Maher’s “Real Time” episodes recently I found it insightful when one of Bill’s panelists said, “Each side is behaving as if they’re losing.” How true. Each side has lost. One side won the culture war and the other side lost. But the side who won the culture war lost the electoral war, so the Culture War victors do indeed feel like losers. Note to culture war victors—you have the majority. How about showing up for every election and winning some elections? That will settle a lot of problems.)

In short, the Supreme Court has been turned into a partisan objective to be taken in order to make a political vision a reality. (Which is why there will continue to be vicious conflict over any nominee this President proposes.)

And the fact such a development seems possible means that we may be very close to killing the goose that has laid the golden eggs since June 21, 1788—i.e. the Constitution being the goose and the orderly and vibrant society that Constitution enables being the eggs.

Consequently, voters must consider when they vote the kind of judicial personalities and philosophies that are likely to be allowed by the candidates the voter is inclined to vote for, not only on the Supreme Court, but lower courts as well**. Once elected, will those political candidate’s choices for the judiciary provide an even handed calling of balls and strikes or will the only consistency they exhibit be ruling for their team’s extreme minority view alone?

Whichever view you support, be sure you vote. Voting matters, because the view that wins matters to you and those who matter to you.

See you next time.



*If you want an insight into that justification, we suggest you read Nancy MacClean’s “Democracy in Chains.” We will likely have more to say about this book later.

**The effort to put judges on courts who would push a given agenda has been with us for a long while. Watch, if you have not, the documentary “Hot Coffee”. If you believe in an independent judiciary committed to justice for all, you’re not going to like what you see.

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