As the President considers a new judge to replace Justice Anthony Kennedy he would do well to remember that the Kennedy seat was supposed to go to Judge Robert Bork, a good man who was unjustly attacked and precluded from sitting on the Supreme Court. Conservatives have long recognized Bork should have had that spot.
The tension on the right today is about whether conservatives should forget Bork and try to impose their libertarian views on the people via a theory of "judicial engagement", finding new “original” meaning in this or that phrase of the constitution, just as the left has done for generations with their notion of a living constitution and “penumbras” emanating from this or that amendment. Even if they support such economic plans as policy, conservatives should not point with pride to such an enterprise through the courts because judges should not be in the business of imposing their values on the voters from the left or the right.
Mindful of this tension as we celebrate Independence Day, we should all reflect on the proper role of the courts in our system. To that end there are no better words of explanation than those of former Justice Antonin Scalia who wrote about the threat of the courts disenfranchising voters in one of his dissenting opinions thus: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
The people would also do well to remember the words of President Ronald Reagan when speaking to US Attorneys during his administration cautioning that the power of the judiciary can be abused and should not pre-empt legislative functions or “become vehicles for political action or social experimentation or for coercing the populace into adopting anyone’s personal view of utopia”.
Furthermore, Kennedy reminded us of this himself in a 2003 Opinion: “Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy”.
May the new justice remember his or her proper role in our system and that here the people govern.
Michael Thompson, Jr.
Wright & Greenhill, P.C
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