With Wednesday’s surprise announcement that Justice Anthony Kennedy submitted his resignation to President Donald Trump, the political world whirled. It did not help matters that two significant decisions were handed down by 5-4 majorities at nearly the same time.
The problem is aggravated by political lawfare. It seems every major policy decision of elected political bodies is almost immediately thrown into the judiciary. And that branch of government is divided against itself as well, hurling polite invective at each other through majority and minority opinions.
For example, one recent decision was captioned Trump v. Hawaii. While the title may have merit as a reality show, the substance was much more serious. Specifically, it dealt with Trump’s third executive order — issued eight months into office — concerning immigrants traveling into the United States from certain Muslim-majority countries, and North Korea.
His first executive order on the subject was thrown out by lower courts. His second expired by its own terms, with the third taking the authoritative position. Opponents, such as the state of Hawaii, claimed it was merely a continuation of candidate Trump’s “Muslim ban” promises. The US government claimed it was a valid exercise of discretion delegated to the president by federal law, noting the world’s largest Muslim-majority nation — Indonesia — was not subject to the order.
A majority of the Supreme Court refused to look behind the curtain and attempt to divine the intent of the president. Effectively, they decided that as long as there was a credible, constitutionally permissible reason for a president’s decisions, it was beyond their purview to try and rule on motives of the elected branch.
A minority disagreed. Vehemently. They spent several pages detailing campaign statements made by Trump. In short, they claimed to take him at his word and would have struck down his order.
That raises some challenging questions. Do we really want the Supreme Court policing the statements of political candidates on the campaign trail? And, assuming we do, at what point do prior statements become irrelevant? If Barack Obama had issued the same order, would it have been valid? If so, would the answer depend on what speeches the individuals had made?
In a strange way, Obamacare set us up for this. When the constitutional challenge to the Affordable Care Act reached the Supreme Court, the law was upheld. However, there was much more nuance to the decision. A majority found that the law was not a valid exercise of Congress’ power under the “commerce clause.”
Rather, Chief Justice John Roberts upheld the law — siding with the four left-leaning judges — by “refashioning” the “individual mandate” from a constitutionally invalid penalty into a “tax” legitimately imposed by Congress. Of course, President Obama was adamant the penalties were not a “tax.” The court didn’t take him at his word, so the ACA remained law of the land.
As we move into what will inevitably become a contentious fight over Kennedy’s successor, people will demand a judge who will overturn their least-favorite precedent. Roe v. Wade. Citizens United. Wickard v. Filburn. And countless others.
But that is the worst possible approach. The Supreme Court needs to apply the law as they find it, not as they wish it to be. If we demand political litmus tests and ask the justices to police the intent of politicians, we threaten the legitimacy of the third branch. Their legitimacy is their sword and shield; when it falls, the checks-and-balances provided by the Founders flounder.
In modern history, there have only been two Supreme Court nominees endorsed as “well qualified” who failed to take the bench. Merrick Garland and Robert Bork. Each side got their pound of flesh. So let’s try to make the judiciary as strong as it can be, and preserve and protect their legitimacy.
Inshalla, it is up to us to save that honorable court.