I.
The Supreme Court is the biggest potential danger to the United States.
Too strong? Not really. Thomas Jefferson warned a long time ago that the Supreme Court would eventually be the downfall of the Constitution and even the United States.[i] His concern was simple: there are no effective checks or balances on the Court. When push comes to shove, the Court can rule whatever it wants by majority decision. And that’s that.
It is also why the demonstrations were so intense during the 2018 Kavanaugh hearings and confirmation vote, and the election a month later. It is the main reason such undue pressure—some natural, some funded by Leftist billionaires—was brought to bear against certain Senators during the hearings and in Senate and House races during the election. And why savvy observers on both Left and Right, as well as many Independents, feel uneasy even after the hearings and elections are over. An indelible image remains for anyone who closely watched the protests: Americans standing and clawing helplessly on the giant doors of the Supreme Court building, apparently wailing in forlorn agony.
Why the anguish? Why the writhing and screaming, the threats and promises of more theatrics to come? Why the secretive tactics of politicians and the widening divisions of American politics? It’s more than just anti-Trumpism, or extreme party squabbling. Something else, something deeper, is at play here. But what is it, exactly? What’s all the fuss about?
Answer: Jefferson had it right. The truth is that the Supreme Court has too much power. It can rule whatever it wants. And whatever it decrees isn’t even called a “decree”, or “edict”, but rather a “finding” or “judgment”. It all sounds objective, clinical, innocuous, but the power is real. Indeed, the modern Court “finds” what the Constitution means, and announces such “findings” to the rest of us, to the peons. This isn’t what the Framers had in mind. Make no mistake, the “peons” are everyone not a majority Justice on the Court. Five people can rule us now, on pretty much anything.
This brought the Left to its extreme tactics in 2018. A fifth Right-leaning vote would lead to the biggest nightmares people on the Left can imagine: a government that outlaws abortion, makes homosexuality a crime, or implements laws that raise one race or religion above others or certain races or religions below the rest. Such laws might be extreme, or mild, but even the so-called “mild” ones deeply threaten the deepest values of the Left. Imagine a “mild” law that requires your race, or religion, whatever it is, to obey a more harsh set of laws than any other race or religion, or face annual penalties. Suddenly it’s not so mild.
For those on the Right, the danger is just as real. If the Court can do any of the things just listed above, a five-decision majority by some future Court, or the current Court with just one Justice switching sides on a specific decision, can also create the nightmares of the Right: drastically regulating religion and the way people worship, or outlawing religious practice, entirely outlawing guns except for those carried by government agents, taxing at extreme rates or government fixing of prices in the economy, ending state sovereignty and making all states the same (simply enforcement hubs of the national government), or outlawing all education except mandatory public schools.
If a future Court rules 5-4 on any of these things (say massive regulation of religion and forcing people to worship a certain way outlined by Washington D.C., or outlawing all firearms except those carried by police and secret government agents), members of the Right may well find themselves clawing and wailing at the front doors of the Court. Or, not unlikely for some people, refusing to obey, and facing the violent consequences. If Hillary Clinton had been elected in 2016 and appointed a second Justice to the Court in 2018, how would the Right have responded? And if Trump gets to appoint a third Justice, or even a fourth, the backlash will likely be even more extreme.
There are at least two major issues at play in all this. First, we’ve had partisan majorities on the Court before—so why is this such a big problem right now? Second, what can be done about this situation? YHow can we fix the problem, before it becomes a violent battle within our nation, a new Civil War of some kind?
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