DANIEL VAUGHAN: The Supreme Court needs more federalism, less legislating

July 16, 2018

It says something when you can sum up all the Democratic opposition to Supreme Court nominee Brett Kavanaugh in a single headline from the satirical news website, The Onion: “Kavanaugh Nomination Falters After Washington Post Publishes Shocking Editorial Claiming He Forgot Daughter’s Piano Recital.”

The Onion published that headline after the Washington Post ran a story — intended to stir controversy — alleging that Kavanaugh racked up credit card debt purchasing…

*drumroll*

…baseball tickets.

Yes, you heard right. Washington Nationals baseball tickets.

The horror.

In truth, the actual scandal (in my humble opinion) was that Kavanaugh enjoys his pasta with ketchup.

That’s just wrong.

But even aside from these “scandalous” revelations, the fringe-left has gone into full meltdown mode over Kavanaugh. Some have even called for the abolition of the Supreme Court.

Furthermore, the far-left news site ThinkProgress is leading the charge to abolish the Senate, because it’s apparently an “anti-Democratic institution.” And does anyone remember Hillary Clinton’s request to abolish the Electoral College after she lost?

You’ll note that these calls for abolition only come after the left has lost some cultural, legal, or political battle.

Since the election of Donald Trump, I’ve been waiting to see if liberals, progressives, or anyone on the left would have some realization that we should pursue federalism, as envisioned by the Founders; as in, removing power from the federal government and giving it back to the states and local governments in hopes of crafting communities that the people living in them actually want.

But that hasn’t happened — not even in the slightest.

Instead of critiquing the branches of government based on the merits of federalism, the left wants to consolidate more power into the presidency. Under their plans, it won’t be long until the executive branch morphed into a monarchy.

Moreover, the problem of an ever-increasingly-powerful Supreme Court — complete with politically contentious nominee hearings — was predicted by one of its own: the late Justice Antonin Scalia, who wrote in his dissent in Planned Parenthood v. Casey (the case that upheld the right to an abortion from Roe v. Wade) that when the Supreme Court first created the right to an abortion, it created whole-cloth from nothing.

No text in the Court’s jurisdiction speaks on the issue of abortion. Before Roe, the states passed their own laws regulating abortion.

When the Supreme Court suddenly invalidated all those state laws, upsetting an equilibrium across the country, they didn’t interpret the Constitution, a statute, or any law. The Court made what Scalia called a “value judgment.”

Scalia wrote:

But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text; … if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different.

The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.

The key to a so-called value judgment is that it’s akin to legislating and creating law. The nine unelected judges decide to legislate instead of interpreting.

And, as Scalia argues, if the Supreme Court is going to take some of Congress’ legislative power, then the Court deserves to face protests, demonstrations, and political uproar.

The Court was never meant to be a political entity; it was made to interpret laws. When the court becomes political, it doesn’t have any of the checks that other branches have on them via the political process, as Alexander Hamilton explained in Federalist 78.

If the Supreme Court becomes political, the only political check on it is the nomination process, as Scalia points out:

Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.

The Kavanaugh nomination is being treated politically because previous liberal courts strayed from interpreting the law, and started issuing value judgments on the entire country.

Value judgments peaked in the Warren and Burger Courts, which significantly expanded the reach of the Supreme Court. Roe v. Wade is among those value judgments.

In turn, because political liberals on the Court started issuing liberal value judgments, liberal politicians worked to protect the Court from any challengers. That’s when we started seeing senators like Joe Biden and Ted Kennedy smear constitutional conservatives like Robert Bork and Clarence Thomas, who wanted to reverse the trend of the Court issuing value judgments.

Reining in the Court’s power and overturning bad cases that rely solely on value judgments — and the theory of living constitutionalism — is a political decision, not a legal one. Originalism and textualism taught and argued by Scalia, Thomas, Gorsuch, and now Kavanaugh would return the Court to a healthy state.

Kavanaugh will pursue federalism, and fight to give power back to states and local communities.

That’s an absolute good for a country as divided as ours — maybe even a necessity.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.