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How did an unassuming Sacramento lawyer become the most powerful man in America?
That’s the question raised over the last two decades when the Supreme Court was deliberating a high-profile social case. “It all comes down to Kennedy,” speculation ran, and speculation was often right. Justice Anthony Kennedy was the wild card on the bench, whose decision could tip the balance between tradition and innovation. His vote denied the right of states to set their own limits on abortion (Planned Parenthood v. Casey), made same-sex marriage legal nationwide (Obergefell v. Hodges), and allowed local governments to condemn private property in order to increase tax revenue (Kelo v. City of New London).
But his decisions also allowed prayer at city council meetings, cleared away barriers to political speech, and freed crisis pregnancy centers from having to advertise abortion. A mixed record, meaning no one is completely happy with him. “Good Riddance,” said National Review; “a horrible justice,” according to Think Progress. Even before his replacement was announced, the left was lining up with “Stop [whoever]” posters and the right was scrutinizing past decisions of every judge on the short list.
No one person should have that kind of influence over policy. And, as countless observers have pointed out, when the retirement of a Supreme Court justice throws the entire nation in an uproar, something is out of whack.
Without the notion of a higher law, something has to fill the gap, and that something turns out to be the third branch of government.
It would probably surprise most Americans that the constitutional purpose of the Supreme Court of the United States (SCOTUS) is not to ensure justice for individuals. The Constitution itself was not supremely clear in spelling out the constitutional purpose. Article III airily describes the Supreme Court’s jurisdiction as “all cases ... arising under this Constitution,” whatever that means. It was Chief Justice John Marshall, in Marbury v. Madison, who pegged the meaning to judicial review—or determining whether laws passed by Congress or the states are constitutional. With 200 years of precedent behind it, judicial review has become an “originalist” principle, even though it isn’t strictly original.
But SCOTUS has ballooned in importance since the 1950s, with Roe v. Wade as a notorious example of finding “constitutionality” within the margins of the text. To most Americans, the Supreme Court has become the guarantor of individual rights, pure and simple, even though establishing one right almost always curtails another.
Even worse, SCOTUS has become the highest authority, the last word. All three branches of government were created under the assumption of a higher law, given (most of the framers agreed) by God. God’s law instructed individual conscience, which the courts were intended to protect, mostly by restraining the power of the executive and legislative branches. And itself. Without the notion of a higher law, something has to fill the gap, and that something turns out to be the third branch of government. By assuming the power of the last word, the Supreme Court has become the conscience of the nation. If you doubt it, read some of Justice Kennedy’s philosophical—as opposed to judicial—opinions for the majority.
With his retirement and a supposed originalist replacement in Brett Kavanaugh, the left clings to hope by the brittle fingernails of Ruth Bader Ginsburg, or “Notorious RBG.” A biographical movie opening in November will polish her credentials as a champion of the marginalized. Her retirement, or sudden demise, would make Kennedy’s retirement look like a minor tremor. Court watchers are anxiously monitoring her workout routines. A Facebook meme facetiously (or not) offers replacement organs, should she need a new heart or liver.
To the left, and to some extent the right, a slim majority on the court constitutes the “Justice League,” a band of robed avengers battling the evil foes of equality (for the left) or freedom (for the right). A very select number is the last best hope of our democracy.
This view is not an exaggeration, and that’s a problem. Supreme Court selections have more profound social consequences than almost any other government act, and it was never meant to be that way. But it will be that way for a long, long time.