Ask the Candidates What They Will Do About the Supreme Court

James W. Lucas has an impressive post up over at American Thinker — it’s loaded with facts and links. Here is an excerpt — and in later posts, we’ll examine some of the links he includes:

What they will look for in Supreme Court nominees is another useless question. Since Richard Nixon, Republican presidents have been saying they will only put forward nominees who respect the Constitution, and where has that gotten us?  That’s important, but clearly has not been sufficient.

Instead, we need to ask a deeper question. We need to know what they see as the proper constitutional role of the Supreme Court. Do we passively acquiesce in the Court’s decrees, deeming them the irreversible and absolute “law of the land” (see Donald Trump, Jeb Bush, John Kasich, Carly Fiorina, and Lindsay Graham), or is some resistance feasible (see Mike Huckabee and Ted Cruz)?

For many decades, conservative legal scholars have argued that the modern Supreme Court has assumed far more power than the Founders ever intended it to have. They would have been horrified at the idea that five unelected and unaccountable judges can change the Constitution without any practical recourse for the people or their elected representatives.  The candidates need to be asked if they accept this modern post-World War II concept of judicial supremacy — that the states and the nation’s elected officials must utterly acquiesce in the Supreme Court’s dictates. If they don’t, what do they propose to do to re-establish the original balance of power between the federal judiciary on the one hand and the people and their democratically elected representatives in the states, the Congress and the White House on the other?

An Answers Cheat Sheet

Now, lest anyone claim that this type of question would just be throwing an obscure legal ‘gotcha’ question at the candidates, here is a handy cheat sheet with the possible answers.

I give up. The Supreme Court is the most powerful branch of the government. Their decrees, not the laws passed by Congress, are the supreme law of the land and must be obeyed without question.

Departmentalism. This view, well summarized here and here, holds that the executive and legislative branches are not inferior to, but rather coequal with the judicial branch. They are responsible for forming and following their own views on the Constitution. Although this view goes back to the beginning, the poster children for departmentalism are Abraham Lincoln and the first Republican Congress. They rejected the Dred Scott decision and acted in contravention of it. Dred Scott was at the most, as Lincoln argued in his first inaugural, binding only on the actual parties to the case. The courts are only supposed to decide specific cases, not dictate the entirety of the law. Departmentalism raises the prospect of creative tension between the unelected and the elected branches of government, which may be uncomfortable for a public used to the paternalistic certainties of judicial supremacy. However, I suspect that the Founders would say that such discomfort is a cost of self-government, well preferable to what they would have regarded as tyranny.

Read more: American Thinker

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