Now that Brett Kavanaugh has been selected by President Trump to be the next Supreme Court Justice, the gladiator games of the confirmation process begins. Much of the attention will focus on the bitter hysteria that the Never Trump lunatics exhibit as they regress even further into denial. Those supporters who demand a Living Constitution are in a panic. They see the gains they have made over decades are fading with a court of Originalists and fear that Textualism will become the standard for the Supreme Court. The self-proclaimed enlightened zealots contend they are social justice warriors. In actuality they protect the corrupt institutions, practices and policies that progressives profess they oppose.
The fundamental flaw in the rulings of the SCOTUS is that their decisions are only opinions. If the three branches of the Federal government are co-equal, it is absurd to accept that the gang of nine outlaws are the final arbitrators of what is legal. The efforts of Franklin D. Roosevelt to pack the court was a direct assault on certifying the unconstitutionality of New Deal legislation.
When the Lyndon B. Johnson Great Society failed, the Democrats began to lose their legislative rubber stamp on their socialist despotism. Thus, they turned to compromised judges that would be browbeaten and placed on the bench. All this ridiculous jive that the Supremes are independent does not square with the history of the court.
In practice, the black robes on the high court perform the function of protecting the establishment. The cover used to justify the caustic pattern of avoiding a Textualist interpretation of the Constitution often relies upon the specious paradigm of Stare decisis which is Latin for “to stand by things decided.” In short, it is the doctrine of precedent.
“Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public.”
Operating under the illusion that the law must blatantly accept former opinion decisions even when the constitutional conflict is obvious or when there is no mention in the supreme law of the land is ludicrous. A prime example of the conveyance of irrational ‘RIGHTS’ analyzes The personhood of corporations on the SCOTUSblog.
“The rehabilitation of the corporate “person” almost certainly was a project that five of the Justices were prepared to embrace. It could be argued, indeed, that the Court put the case over to the current Term for a second argument, focused on corporation’s rights under the Constitution, as part of that project. There was not a hint that those five, in the end, were in any way moved by the suggestion at that second argument by Justice Sonia Sotomayor that the Court may have been wrong for a century about awarding “personhood” to corporations.
The majority put aside the dissenting opinion’s repeated mentions of the special favors that the corporate form gets, treating those as a completely inadequate foundation for treating corporations differently as political citizens. And Justice Antonin Scalia, in a separate opinion buttressing the majority ruling, went to considerable lengths to enhance the constitutional pedigree of corporations’ rights and to denounce the dissenters’ suggestion that the Founders did not think highly of corporations.”
This viewpoint illustrates that even the most notable Originalists sometimes succumb to false precedents when a non-existent personhood for an artificial commercial entity is upheld. The lesson is that a band of untouchables (unless going on a quail hunt in Cibolo Creek Ranch) need to reach a majority to achieve whatever political outcome they seek. Maintaining that their legal opinions are based on sound jurisprudence principles insults the intelligence of the layperson.
For members of the attorney bar association, it is common knowledge that decade long direction of the court pushed and expanded the institutions of government authority. With this background, having Brett Kavanaugh on the bench is certainly better than any nominee that Hillary Clinton would have appointed. However, guarded reservation is appropriate since Kavanaugh was in charge of an Investigation into Vince Foster’s death.
The apprehension of trust is always a concern within the chambers of the legal system. The fraternity of attorneys is noted for its skills to circumvent, distort and prevaricate. Too many honorable Americans admire the law without acknowledging the poignant fact that lawyers view the general public as subservient to members of the legal profession.
Placing your confidence in the Supreme Court will fall short of expectations. Resolving political disputes needs to be attained in the public arena of politics. The best way to preserve the Constitution is to live it daily and damn the rulings of the courts and government enforcement. SCOTUS does not deserve special reverence.