The Kavanaugh hearings’ warning: the Court is too powerful

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by Fabius Maximus

Summary: The charges and counter-charges about Kavanaugh obscure the key issue. The Court has become too powerful, so fights for control of it inevitably become fiercer. This will continue until something breaks in our politics, or we reform the Court.

Last week I explained how the Kavanaugh hearing showed that our system is broken. Comments showed that I was not clear. We need to understand that the Democrats’ attempt to stop Kavanaugh’s nomination is natural and proper. It is an inevitable evolution of the US political system created by the Justices in their rulings in Marbury v. Madison (1803) Griswold v. Connecticut (1966). These gave the Supreme Court powers not only far greater than planned by the Founders – but also ill-defined and lacking clear limits.

This gives the nine justices vast discretionary power. They have lifetime tenure. The Court is practically free from the checks and balances that limit Congress and the Executive. There is only the theoretical ability of Congress to limit some aspects of the Court’s purview (jurisdiction stripping).

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The Supreme Court’s website says “Few other courts in the world have the same authority of constitutional interpretation.” I do not believe any other nation vests such power in so few judicial hands (see Britannica’s entry on judicial review).

No other nine people in American have, collectively, such political power. They can declare that slaves are not citizens (Dred Scott), that corporations have the some of the same rights as people, redefined the meaning of the Second Amendment (overturning a century of precedents in Heller), and changed America in a thousand other ways. It is the undemocratic heart of our political regime.

Slowly the informal norms limiting Justices’ use of this fantastic power have faded. Precedents many decades or generations old can be destroyed on a day. New rights can be created at will. Nobody can predict what they will do. This leads to greed for power – and fear of defeat.

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Paul Krugman gets hysterical: “Kavanaugh Will Kill the Constitution.

Control of such power warrants almost unlimited effort. With each confirmation hearing, the weaker side goes further to stop it. The conventions that limit what can be done erode away more. This is logical and inevitable. Editorials pleading for polite behavior will not stop this process getting more ugly with each cycle.

The clown show of these nomination hearings should warn us that the Court’s power is too broad and large. Only one thing can stop the Justices’ ever-bolder exercise of power and ever-growing intensity of their nomination process. Limit the power of the Court. Roll its authority back closer to what the Founders intended. Or we can reform the Court along the lines of top courts in other democratic nations.

It will take a Constitutional amendment. That will be difficult and slow. But it is necessary, as will become steadily more obvious over time.


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