2019 could be an incredible and historic year for the Supreme Court – Here’s why
S E E D E D C O N T E N T
The year ahead has the potential to be historic for the U.S. Supreme Court. With Justice Brett Kavanaugh replacing the inconsistent Justice Anthony M. Kennedy, conservatives have a majority on the court for the first time since 1936.
More importantly, for the first time in generations a majority of the justices on the court believe, to varying degrees, in interpreting the Constitution according to its original meaning. This could produce a return of humility to the judiciary.
For decades, liberals have pushed a view of the high court and a method of judging that is antithetical to our written Constitution. Founded on beliefs from the legal realism movement – still the primary approach taught today in American law schools – the left deems the law as just politics and power.
Under this view, the courts are to worry about outcomes rather than the process of determining what the law means and applying it to the facts of the case. Forget about the ideal of blind Lady Justice. She has both eyes wide open to hand legal victory to the preferred party.
This worldview was on display when President Obama said he wanted judges who had empathy. Of course, this was selective empathy, such as for racial minorities, unions and criminal suspects – not for corporations or the police.
But the Constitution demands a better way. As Chief Justice John Roberts suggested during his confirmation hearings, judges are like umpires – just calling balls and strikes. In other words, a judge’s job is to follow the right process, not reach a preferred outcome. The outcomes take care of themselves.
These two competing visions of the proper role of a judge lead to two very different ways of interpreting the Constitution. For the judge-as-philosopher-king model, judges exercise the same power as legislators, free to change the meaning of the law as they see fit. Hence, the Supreme Court can write its own values into the Constitution.
For the judge-as-umpire model, however, the court does not make the law. Rather, it determines what the words of the law meant at the time of the law’s enactment, and applies that meaning to the case at hand. This methodology of discerning the law according to its original meaning is called “originalism” when dealing with the Constitution and “textualism” when dealing with statutes.
And in some form or another, this way of judging goes all the way back to our nation’s founding.
From the Constitution’s perspective, originalism is superior to an approach where judges just implement their policy preferences. There are at least two reasons for this.
First, originalism is the only legitimate way for judges to exercise the “judicial power” granted them by the Constitution. That power is abused – or more accurately, legislative power is usurped – if, as Alexander Hamilton warned, “courts … exercise WILL instead of Judgment, the consequence (being) the substitution of their pleasure to that of the legislative body.”
Second, allowing courts to bend the law to their own desires weakens the republic. The power to amend the Constitution was left with the people – the sovereign – to be exercised through state constitutional conventions and their representatives in Congress.
President Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Now committed to originalism, a majority of the Supreme Court can begin the process of restoring the Constitution to its original meaning and returning the judiciary to its place as the “least dangerous” branch. And that restoration may well begin in 2019.
Perhaps the most immediate area, but also the most influential, will be cutting back the administrative state. The federal government has swollen to a gargantuan size with numerous federal agencies passing tens of thousands of pages of regulations every year that never undergo approval by the House and Senate and signature by the president.
When designing the Constitution, the founders understood that the accumulation of power can lead to tyranny. To prevent this, they diffused power at the federal level by creating three branches of government exercising three different powers. The founders also diffused power between the federal and state governments. This created what Madison called a “double security” for the people’s liberty.
But President Woodrow Wilson introduced the idea that these constitutional protections have become antiquated and inefficient. Accelerated by President Franklin Delano Roosevelt during the New Deal, our government evaded the separation of powers by concentrating all three powers – executive, legislative, and judicial – in federal agencies.
The Supreme Court can put a stop to this in at least three ways.
First, in this term’s Gundy case , the high court can once again enforce the Constitution’s separation of federal power among the three branches by resuscitating the nondelegation doctrine. Simply put, that doctrine holds that one branch of the federal government cannot delegate its power to another. Congress cannot authorize agencies to pass rules that legally bind the public in its stead.
Second, the court can kill the judicially created doctrine of requiring federal judges to defer to agency interpretations of ambiguous statutes and regulations. It is a court’s constitutional role to determine what the law means in a dispute before it, and it should do so without deferring to any party, particularly not a different branch of government.
The Supreme Court has the chance to end deference in the context of regulations in this term’s case of Kisor v. Wilkie .
Finally, the court can restore the constitutional fact that all of the executive power has been vested in the president. Therefore, to exercise that power and see that the laws are faithfully executed, the president must be able to oversee all who work under him.
Congress has sought to insulate some federal agencies from presidential oversight by making them independent of the president’s ability to remove their leaders or check their actions.
But this just creates a politically unaccountable, and potentially rogue, faction of the executive branch. That’s not what the Constitution allows.
The Supreme Court should overturn past cases, such as Morrison v. Olson and Humphrey’s Executor, which allowed federal prosecutors or agency commissioners to act free from White House control.
The Constitution, as written and understood when enacted, is our supreme law. The Supreme Court has long viewed its own pronouncements as on a par with our founding document.
The high court can restore judicial humility by following the Constitution’s original meaning, until the people choose to change it. And if the court begins this process of restoration in 2019, it will be a very good year for the republic.
By John Yoo ,
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"For decades, liberals have pushed a view of the high court and a method of judging that is antithetical to our written Constitution. Founded on beliefs from the legal realism movement – still the primary approach taught today in American law schools – the left deems the law as just politics and power."
This term the SCOTUS is scheduled to hear "DACA" legality, Federal agency powers, 2020 census and "gerrymandering"
there was nothing legal about what obama did there
so, there is no doubt the supreme court will kill daca.
I always have to laugh when I see that Trump supporters claim they voted for Trump because of the Supreme Court. I don't believe anyone who supports this President primarily because they have no moral principals and no decency. They will be judged by history for who they are. Anyone who can support a man who has sexually assaulted women physically and verbally is no man to me. They are an extension of the pathetic human, Donald Trump.
Something tells me they won’t be so excited when they themselves have no access to abortion. They are just sheep.
Let me simply say that I hope the females in their families meet a man just like Donald Trump at least once in their lives since he's held in such high regard. Can you imagine how proud they'd be to learn all about the encounter.
Did you feel the same way about Clinton? I don't recall too much liberal outrage then.
Did we know each other back when Clinton was President...........I don't remember you. Come to think of it, I did not participate in on line communities back then. Were there on line communities when Clinton was president?
Even so, I will address your point which is did I get up in arms about Clinton. I was young and not very interested in politics back then but I do recall the issue and remember thinking he was a pig and disgusting.
Mexican standoff here as the majority of conservatives felt the same way about the Wicked Witch from New York.
I have no idea what you mean by mexican standoff. Is that another derogatory trump phrase you've learned that you've been itching to use?
right...........
I'm sure he/she appreciates you bailing him/her out of that covfefe AND they learned how to spin it the next time they use it.
Since I am of Mexican American heritage on my mother's side, I see it hard to be racist against myself..
Well I'm not Mexican
Google is your friend, try using it...
Grabbing pussy is assault, a consensual blow job is not, but frankly if Clinton were happening today instead of 20 years ago he would also pay the price. Different times today.
I'm sure I don't need suggestions from a trump supporter. It would be foolish to take the word of one.
I don't need anybody to bail me out. You just got caught putting your foot in your mouth and don't like it...
Yep, back then the liberal talking point was Presidential character didn't matter..... They set that precedent and now pretend it never happened.
If I put my foot in my mouth then I'm the type of person who would apologize. In this instance I am not the one who made the thoughtless comment, you did.
I am not familiar with the term and wouldn't have thought to use it under the current atmosphere. I probably would have used the term "stand off" without the Mexican jab.
Of course it isn't a jab to those who think little of mexicans but to some it's considered a derogatory comment especially when trump and his supporters have expressed their hatred for mexicans.
Please be so kind as to inform all here when I ever said I voted for or was a Trump supporter. I await your response...
You're funny
You most certainly did! Love it...
You are aware of the black term that was also a well used term from many years ago that is still used today by certain factions of trump supporters.
Your argument is flawed. The term is derogatory and should never be used by a trump supporter since they clearly have a prejudice against mexicans.
Obviously you cannot and you know it, so thank you for proving my point....
The term Mexican Standoff actually dates and was first used to describe the battle of The Alamo.
No, it's just that your demand for proof is so ridiculous. I thought you were genuinely being funny.
Anyone who is new to this site could come on and see quite clearly who the Trump supporters are.
Practically everyday you participate on this site your comments one way or another are in support of this President and his racist, misogynist, hateful, evil policies right down to the people he selects for his cabinet, his friends, his supreme court justices.
[deleted] I don't have to prove anything. You prove it all by yourself in your comments.
So, I guess you still use the "n" word to describe blacks since it was a common term used so long ago?
Do you see the flaw in your argument. Just because it was a well used term doesn't make the term okay to continue to use.
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