The SCOTUS Succession Crisis: Resolved

The death of J. Antonin Scalia has brought about the predictable seismic political upheaval. However, all this Sturm und Drang is totally unnecessary.

There is one way, and one way only, to put an end, once and for all, to this preposterous political theater we’re forced to endure to every time an opening occurs on the SCOTUS: repudiate and abrogate the doctrine of judicial despotism. Notice I didn’t call it “judicial review,” its conventional label; that euphemism does nothing except to veil what’s really there. In the absence of this pernicious dogma, SCOTUS nominations would be fairly routine and uncontroversial instead of earth-shattering as they are now.

There is absolutely no explicit mandate in the U.S. Constitution for federal judicial despotism as we find it today; it is a power arrogated by the SCOTUS itself and complied with by virtually everyone else. Surely for a power so vast, so utterly dispositive, a reasonable person must demand that there be an express, unambiguous constitutional power. (Sorry, no “implied” power, and certainly no pseudo-judicial silly talk like “penumbras, formed by emanations,” will cut it.) Yet the absence of such an explicit power is greeted perennially, universally by…crickets. Nothing, even from folks who can’t not know better.

Why is this so? The reasons are no doubt many. I will first point to a couple of the more despicable ones:

  • Political risk evasion. This seems to be nowadays primarily a Republican escape route, exemplified perfectly by President George W. Bush’s [mis]handling of the McCain-Feingold campaign finance “reform.” Instead of vetoing the bill for its blatant unconstitutionality, he signed, shrugged and declared that he’d let “the courts” sort it out.
  • Implementing policies most Americans reject. This is primarily a Democrat scheme, typically coupled with some variant of the fraudulent meme known as the “living” Constitution. Roe Wade is perhaps the most flagrant instance of this sham in the last one hundred years, but there are others, most recently Obergefell v. Hodges.

Here’s another reason, one seldom discussed:

  • Fear of judicial chaos. This concern has some basis in reality, inasmuch as judicial despotism has become so long-enduring and deeply entrenched. A rejection of that faux power would no doubt bring along with it a period of turmoil. But which is better, continuing to truckle to judicial despotism or finally asserting the authentic Constitution?

Destroying judicial despotism need not be a complex undertaking—however politically difficult it might be—and would require no constitutional amendment(s); we don’t need an Article 5 convention, with all its ponderous preparation and risk of unforeseen outcomes, to get this started. All that’s needed is a re-asserting of the original Constitution. That entails a federal government with three co-equal branches: that means that executive and congressional review as to constitutionality should rightly be co-equal in authority to judicial review. Congressional review, executive review and judicial review should henceforth be regarded as sub-topics of constitutional review.

However, if Congress and the Executive were to actually declare such bold and brazen powers that have been entombed for so long, yet another anxiety would burst forth:

  • Fear of a tsunami of Constitutional challenges. American law is replete with legislation, enacted over multiple decades, that is of questionable constitutionality at a fundamental level, at least by originalist standards. This reality has long been veiled by manipulation of the judicial system that keeps such legislation from ever winding its way to the SCOTUS in a form of adjudication that unmasks its inherent unconstitutionality. Once Congress or the Executive declares co-equality with the SCOTUS as to constitutional review, continuing this deceitful charade will be much more difficult, if not impossible.

But more is required in addition to federal action. After all, Article 6, Clause 3 does say, “Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” We must also reassert the doctrine of shared sovereignty (state/federal), an original constitutional principle—as the Constitution was written and, especially, as it was ratified and amended (9th and 10th Amendments); this principle is now nearly defunct after having been defamed for decades as “states’ rights.” If you’re listening to neoprog Democrats, you no doubt think that term means racist, sexist, homophobe, anti-Semite, etc.

Call all of this—OK, brace yourself, I’m about to to say it—nullification, if you will. As a matter of fact, Congressional nullification of any Supreme Court—or for that matter, any lower Federal court—decision is an explicit power in the Constitution (Article 3, Section 2, Clause 2): Congress can simply take the issue out of the federal courts’ jurisdiction—that, presumptively, by a mere majority vote, and why not? The SCOTUS, after all, can issue an opinion based on a mere 5-4 vote.

Executive power to nullify a federal court opinion is much more limited, and well it should be. Bad SCOTUS decisions are so often in actuality instances of legislative usurpation by the Court; but legislating is a power vested solely in Congress. The executive branch is not impotent, however: it can urge Congress, backed up by public opinion generated with the help of the Presidential bully pulpit, to exercise congressional constitutional power. The primary implementation of the Executive power of congressional review, however, is not through any form of nullification, but rather through the veto.

State power, as shared sovereignty, to implement nullification of a SCOTUS decision is constitutionally unambiguous. Any state need ask only one question: What is the specific, explicit power enumerated in the Constitution that authorizes any federal action mandated by the decision? If the answer is “none,” the state is justified in nullifying that decision. The actual means available to a state to implement such an act will of course be limited, given the vast differential of sheer coercive power between the federal government and any state government. Alas, the true meaning of the 2nd Amendment has long been lost in the mists of history. But a state can still turn off the water.

There is one acceptable reason only for nullification of a SCOTUS decision: the decision is manifestly unconstitutional, according to originalist interpretation of the Constitution. Nor will some blasé, limp-wristed, single-sentence repudiation of such a decision suffice.   Nothing less than a full-orbed, well-reasoned and detailed response from Congress, a President or a state official or governance entity should be taken seriously. This requirement will also help to assure that such nullifications of SCOTUS decisions are rare and discreet.

Co-equality as to constitutional review will also put an end to, or at least reduce the incidence of, fatuous sophistry emanating from the SCOTUS of the sort that infests Obergefell. After all, the SCOTUS, like all institutions with any self-respect, doesn’t want to risk the embarrassment of a successful nullification of one of its decisions by Congress or a state.

The U.S. Constitution, as it stands today, provides all the resources necessary to begin turning back many decades of mal-jurisprudence as well as needless national discord when SCOTUS vacancies occur. All that’s needed is political courage, truthfulness and determination. Sadly, that’s nowhere in evidence nowadays.

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