Editors Note: The Minority Report would like to welcome guest poster Bob Numbers and thank him for this excellent post.
This year’s presidential campaign has focused, in large part, on the economy and who can best help us escape from the recent economic doldrums, and rightfully so. While economic issues will continue to dominate, voters should not overlook another issue that will have a lasting impact well beyond the next four years: the president has the power to appoint justices to the United States Supreme Court and judges to the lower federal courts. Voters must consider with whether they want a president who will appoint judges who apply the Constitution and laws as written and originally understood or a president who will appoint judges willing to impose their own policy preferences on the public.
The nomination of Supreme Court justices is a particularly important issue this year because the winner of this election can dramatically reshape the Supreme Court. The winner of November’s election will likely have the opportunity to replace three current justices, including stalwarts from both the liberal and conservative sides of the bench.
If President Obama is reelected and appoints three justices during his second term, he will have appointed five justices, including Justices Sonya Sotomayor and Elena Kagan. This would be the first time one president has nominated a majority of the Supreme Court since the Eisenhower administration. Make no mistake, if this happens, the Supreme Court will be dominated by justices who are politically to the left of the American public for a generation.
Mitt Romney could have a similarly drastic impact on the Court, in the opposite direction. For example, it is widely anticipated that Justice Ruth Bader Ginsberg will retire during the next four years. If President Romney replaced the liberal-leaning Justice Ginsberg with a justice who had, presumably, a more conservative judicial philosophy, conservatives will have a 6-3 majority on the Supreme Court. This could usher in an era in which the Supreme Court will restrain the development of an all-powerful federal government and ensure that the Constitution and laws are interpreted as written and originally understood.
However, the conservative and liberal labels are not nearly as important as a justice’s commitment to a particular judicial philosophy. Experience has shown that, over time, some judges experience a change in their judicial philosophy. To the extent this occurs, judges tend to drift in one direction: from conservative to liberal. In consideration of this trend, a Romney administration must appoint judicial nominees who are not only intelligent and well-qualified, but who also have a demonstrable track record of being committed to the Constitution as it was originally written and to the rule of law. Additionally, a Romney administration must ensure that his nominees have the fortitude to apply the laws and Constitution as written, even in the face of criticism from the other branches of government, the chattering classes inside the Beltway, and the media.
The ideological balance of the Supreme Court is more than an academic matter. Ensuring that the Constitution’s limitations on federal power are respected and that laws are enforced as written has a significant impact on the country’s fiscal wellbeing. A federal government that meddles in every aspect of a business’s operations will impose a myriad of taxes and regulations on businesses large and small that can stifle economic growth and job creation. Just look at what has been done over the last few years in the areas of health care, banking and environmental regulations. When laws are interpreted and applied not as they are written, but as a judge thinks they should have been written, makes it exceedingly difficult for business owners to plan for the future and to manage risk. If you believe that the Constitution and its unique limits on government power are part of what allows individuals and businesses to prosper in America, you should be very concerned with the composition of the Supreme Court.
The economy is obviously important to everyone, but the decisions made by the next president regarding appointments to the Supreme Court will impact our nation for decades to come. Given the importance of the court to matters of individual liberty, economic liberty and the rights of citizens across the country, we must ensure that our next president appoints judges who are unapologetically committed to a judicial philosophy that puts the rule of law and the Constitution ahead of personal or political preferences.
(Bob Numbers is an attorney with Womble Carlyle in Raleigh. Originally posted at Winston-Salem Journal)
Justice Alito announced the second opinion of the day, in Knox v. Service Employees International Union. By a vote of seven to two, the Court reversed the decision of the Ninth Circuit and remanded the case for further consideration. It held that the case is not moot; five members of the Court further held that the First Amendment does not allow a public-sector union to require objecting non-members to pay a special fee for the purposes of financing the union’s political and ideological activities. Justice Sotomayor filed an opinion concurring in the judgment, in which Justice Ginsburg joined. Justice Breyer filed a dissenting opinion, which was joined by Justice Kagan.
From the Blaze:
The Supreme Court announced Thursday its opinion in the Knox v. Service Employees International Union (SEIU) case, ruling that the First Amendment gives state employees the right to decline to pay dues used for political advocacy by the union.
More specifically, unions in California can no longer force non-union state workers to finance political campaigns. And now the legal precedent has been set
Full text of the opinion:
Supreme Court Justice Anthony Kennedy said the U.S. government has a “very heavy burden of justification” to show where the Constitution authorizes the Congress to change the relation of individuals to the government. His comments came as the high court tackled the central issue in the challenge to the Obama administration’s health-care law — whether Congress could require individuals to carry health insurance or pay a penalty.
Solicitor General Donald Verrilli, in defending the law, argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product. Justice Kennedy asked what limits, if any, there would be to government powers under his argument. Justices Ruth Bader Ginsburg and Stephen Breyer weighed in repeatedly to further Verrilli’s argument, and to counter skeptical remarks made by Justices Antonin Scalia and Samuel Alito.
Karen Harned, Executive Director of the NFIB (National Federation of Independent Business) Small Business Legal Center: “It was a great day at the Supreme Court today. Small business was well-served by great advocates. There were strong questions from all of the justices. We feel that it came through that this is unprecedented. This is the first time in our country’s history that Congress is requiring us to buy a product. It is going to be an unlimited power if the individual mandate is upheld. Congress will be able to force us to buy virtually any product going forward. There were many hypothetical’s given throughout the 2 hours of argument that demonstrated just how vast this government power could become.”
Statement from Professor Randy Barnett, Legal Counsel for NFIB and professor of law at Georgetown University: “I feel very good about how the argument went. The justices appeared closely divided, with half mainly critical of the government and half critically questioning the challengers. All we can do now is wait to see which side can command at least five votes.”
Carrie Severino, chief counsel to the Judicial Crisis Network: “Don’t cancel your old health plan just yet, Obamacare is in trouble. Today’s arguments provided a sobering reality-check for everyone who said this case was open-and-shut. In fact, at least five of the justices are very concerned that if the mandate is upheld – as Chief Justice Roberts said – ‘all bets are off’ and government power would be practically unlimited. Justice Kennedy recognized that the law ‘changes the relationship of the individual to the government in a unique way,’ suggesting a vote against the mandate from this champion of individual liberty.”
David B. Rivkin, Jr., and Lee A. Casey, partners at Baker Hostetler LLP, who have represented the 26 States challenging the Obamacare in the District Court for the Northern District of Florida and the 11th Circuit: “As Justice Anthony Kennedy correctly pointed out during the argument, this unprecedented requirement fundamentally changes the relationship of individuals to the federal government, raising grave concerns for the individual liberty guaranteed by the Constitution’s federal structure. Moreover, in response to questioning from more than one Justice, the Obama Administration was unable to identify any judicially enforceable limiting principle that would, if its arguments in favor of the Individual Mandate were accepted, maintain the Constitution’s balance between federal and state power. If the federal government can require all Americans to obtain health insurance simply because they are here and have some impact on the national economy, then there is no area in which Congress cannot regulate leaving the States as little more than federal administrative units. This is not what the Constitution requires and it is evident from today’s argument that the Justices understand that this is what is at stake in this case.”
Background Information on Ruth’s comments to Egyptians looking for guidance on writing a new constitution:
Cross-Posted: TobyToons.com (Conservative Political Cartoons)