Election 2016: It shouldn’t be all about the Court

Trump v. Clinton.  Double ugh.

by Curt Bentley
by Curt Bentley

Whoever really thought it would come to that?  OK, apparently there were a few people.  And kudos to them, because I never saw a Trump nomination coming.  Nope, not a bit…until it was too late.

But now the Trump Train’s here, baby, and you’ve got to decide whether to get aboard.

Same with the Clinton Bus Tour, Part 4.  Do you climb on or stay off? (It might come around in a few more years, when Chelsea’s 36).

It’s a tough decision for a lot of folks.  But from what I’ve seen, most #NeverishTrump Republicans and #HillaryHater Democrats are, with grumbling and general dissatisfaction, retreating to their familiar corners, rationalizing themselves into a decision to vote for a party nominee that they really don’t like.

And by far the most common justification I have heard from reluctant Trump or Hillary supporters is: The Supreme Court.

We’ve got to keep the Court.  

We’ve got to take back the Court.

So much hangs in the balance.  Unless we control the Court, all is lost.

And then in the next breath: We need judges who aren’t activist or political, who just follow the law.

I’m a big fan of self-awareness, and I think we (i.e., American voters) need to have a self-awareness moment:  The only way you’re ever going to even begin depoliticizing the federal judiciary is if you stop turning Presidential elections into referenda on future Supreme Court nominees.

Do you want activist judges who decide cases according to their political preferences?  Then keep making Presidential elections all about who the candidate promises to appoint to the Supreme Court (I hear that candidates even have “Supreme Court lists” to make it really easy for you these days…).

Want to push back against judicial activism and make it actually possible for judges and justices to do what you say you want them to do?  Then resist the tendency to vote based on keeping or securing control of the Supreme Court.

Governing by judiciary is tempting.  But it’s generally ineffective, almost always inefficient, and always fraught with risk.  While there’s an allure that is associated with a constitutional appeal to the Supreme Court — the possibility of a permanent and validated triumph is hard to resist — every constitutional triumph for one is a defeat for someone else that makes them all the more intransigent and unwilling to compromise.  And when the parties to a case are, in effect, political parties, effort that might have been directed toward well-considered and vetted legislation is directed toward posturing for litigation in hopes of the big win.

Americans of all stripes bemoan the increasing politicization of the judiciary.  And yet, when given an opportunity to depoliticize (even just a little bit), they instead double down.  The thought of losing a political battle — and folks, we’re talking about just a piece rather than the whole enchilada — over healthcare, entitlement spending, gun rights regulation, or you name whatever else — is apparently so terrifying that we’re willing to throw aside the most rudimentary character requirements for political office and otherwise jettison all the rules of the game to the wind.

I want to suggest to you that voting with an eye to future Supreme Court appointments is not smart voting, it’s political myopia that will just exacerbate our current situation. Concerns about actual governance are sacrificed on the altar of judicial influence all substantial amounts of political effort that could be devoted to solving problems is instead directed toward endless argument over that margins of things that have been litigated to death.

Now I understand we have a sort of collective action problem here.  You might decide to stand up and take one for the team and country by not voting based on future judicial choices and really just be handing the election to the other side so they can appoint an activist judge.

Well, that’s a risk, for sure.

But the alternative is a political court whose constitutional pronouncements predictably shift with the prevailing political wind, and whose core “competency” becomes justifying the constitutionalization of run of the mill (though seemingly so important) political opinions of the day.  Why?  Because the electorate demands it.  Take a look in the mirror, America.

One of my favorite speeches that I find myself referring to time and again was given by a judge named Learned Hand (real name, look it up) on a day when newly naturalized Americans were taking the Oath of Citizenship in New York.  He said, among other things:

“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few – as we have learned to our sorrow. 

“What then is the spirit of liberty?

“I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interest alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten – that there may be a kingdom where the least shall be heard and considered side-by-side with the greatest. And now in that spirit, that spirit of an American which has never been, and which may never be – nay, which never will be except as the conscience and courage of Americans create it – yet in the spirit of America which lies hidden in some form in the aspirations of us all.”

Words to consider.

Liked it? Take a second to support Utah.Politico.Hub on Patreon!

Related posts