Barack Obama and the Supreme Court
By: Jim Byrd
The Supreme Court is the omnipresent arbitrator of the U.S. Constitution regarding the law. The justices are appointed for life, and for any case argued before them, their word is the last word. However, the current paramountcy and structure of the court was not the original blueprint of the Supreme Court created by the founders in the Constitution.
Article’s I and II of the Constitution delineate the powers granted to the executive branch and the legislative branch, and in doing so, define the limits of the two branch’s powers. The powers not specifically enumerated in Articles I and II, were made manifest in the 10th Amendment as belonging to the states.
Article III of the Constitution established the Supreme Court; however, in contrast to Article’s I and II, it does not grant any specific powers, duties, or formal structure for the court. The Judiciary Act of 1789 divided the fledgling nation into 13 federal legal districts; the act also established the position of the Chief Justice and granted the president the power to nominate justices to the Supreme Court with the approval of the Senate. From 1787 to 1803, the court operated without established legal boundaries, guidelines, or a distinct purpose. That changed with the case Marbury v. Madison in 1803. Chief Justice John Marshall, with this one case, established the authority of the Supreme Court to conduct judicial review, and strike down the constitutionality of executive acts, legislative acts passed by the United States Congress, and the Congresses of the states. The Court has, since 1803, settled into the role of deciding cases of fundamental and occasionally, statutory law, as applied to the Constitution. This role of the Court is universally accepted by the executive branch, the legislative branch, and the populace.
With the recently announced retirement of Supreme Court Justice David Souter, Barack Obama possesses the opportunity to nominate a justice that will perpetuate his, and the left’s, dogma through judicial review. There is little relevance as to whom he will choose, as there is a greater relevance as to whom he will not choose. Obama will not choose a justice who subscribes to a constructionist’s discernment of the Constitution; he will not choose someone who will apply the original intent nor the original meaning of the Constitution when deciding the constitutionality of law. Obama has enlisted, among others, the assistance of Joe Biden in the search for a justice to replace Souter. Biden, who famously stated during the Robert Bork confirmation hearings in the 1980′s, in regard to Bork’s Yale professorship, and legal scholarship, “We have enough professors on the bench. I want someone who ran for dog catcher.” As absurd as that statement sounds, it is very close in substance to Obama’s past statements concerning a Supreme Court justice’s qualification.
There are generally two terms used to describe contemporary judges: liberal and conservative or left and right; though the two pairs of terms technically have different meanings, in general, their connotations are regarded as the same. These two descriptions would better summarize the political tableau of the U.S. than its judges. The terms liberal and conservative are problematic terms for veraciously describing justices–especially Supreme Court justices. The terms liberal and conservative cannot accurately be used to assay the constitutional disposition of the current ideological chasm within the current Supreme Court.
The term liberal cannot accurately describe the motive behind a judge’s blatant ruling that is contrary to the Constitution; nor can it explain, with accuracy, why a lawyer will fervidly pursue a case pro bono with gratifying expectations of perverting the Constitution if the outcome favors a specific agenda. In contrast, the term conservative does not best describe why a judge will rule, to the best of his or her ability, with the original intent and meaning as the guide. In a more definitive description in the stead of liberal or conservative judge, the term liberal would be replaced with constitutional anarchist and the term conservative with constructionist. The only concessionary middle ground would be the application of the Constitution, adjusted for unforeseen advancements and complexities in society, yet keeping the original meaning and intent intact. Justice O’Connor, before her retirement, and currently Justice Kennedy, were and are considered swing votes on the Supreme Court. Sometimes they ruled as constructionists and sometimes they ruled as anarchists–the two views cannot be reconciled and repackaged as moderate. Neither label would apply, as they are simply unreliable and constitutionally unstable as justices. A Supreme Court justice that rules as a constructionist at time and legislates at times, is defined as a moderate, when the justice is simply operating without a consistent and defined set of principles.
Where does Barack Obama stand within the boundaries of constitutional anarchist and constructionist? Obama, who was a part-time lecturer of the law at the University of Chicago, while simultaneously running for the state senate, has exposed himself, myriadly, as an extreme constitutional anarchist. He emphatically believes that Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter are the epitome of Constitutional law. He stated at a March 2008 rally while campaigning, “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.” He has also expanded on what he believes the role of the Supreme Court should be while campaigning at Farmington Mills, Michigan in March 2008:
” I taught constitutional law for ten years at the University of Chicago and so this stuff matters to me a lot too… When you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, and those who don’t have a lot of clout. Sometimes we’re only looking at academics or people who’ve been in the lower court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court. We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” He has also stated that the Supreme Court should be a “refuge of the powerless.”
Barack Obama seems to have the job description of a social worker confused with the role of a Supreme Court justice. Perhaps Obama believes the country would be better off if the Supreme Court were substituted with the 9th Circuit Court of Appeals–the most overturned court in U.S. history for its unconstitutional and inane rulings. His sophomoric ideas of what should constitute the character of a Supreme Court justice have crossed the threshold of adolescent absurdity. It is evidently apparent that Obama believes that the role of the Supreme Court should, rather than uphold the intent of the Constitution and the Supreme Court, be transformed into the last bastion for the protection of the vulnerable, regardless of de jure; protector of the weak, regardless of right or wrong; and protect and dispense empathy for the poor, the disabled, African-American, gay, old, and any other created class of citizens presumptively voiceless toward the law.
In expanding what William F. Buckley said about Harvard: â€œI’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.â€ It is conceivable enlist the first 100 people from the Boston telephone directory, and put them in an environment for one year where they studied, without influence, Blackstone’s Commentaries on the Law, Locke’s Two Treatises of Government, Polybius’ The Rise of the Roman Empire, Montesquieu’s Spirit of the Laws and Science of Politics, the United States Constitution–with its Amendments, the arguments, and minutes of the authors and the debates, all federal acts that evolved into amendments (i.e. the 1866 Civil Rights Act), and The Federalist Papers. After one year of study, devoid of reading any 20th and 21st century constitutional case law, devoid of influence from an indoctrinating law school, and if remaining true to their newly acquired knowledge, anyone of the group would be better equipped, not withstanding courtroom protocol, to sit on the Supreme Court than the entire staff of most law schools, or the caliber of jurist that Obama will nominate.
Take a hard look at what character Barack Obama believes would make for a good Supreme Court justice, and what he believes the role of the Supreme Court should be, then try and reconcile it with the Constitution, the founders’ intent, and the Marshall court. Couple that with the scandalous and anti-constitutional confidants with whom he has surrounded himself since embarking on his presidential odyssey. Imagine the makeup and character of a Supreme Court of his choosing.
This country was founded as a Republic, ruled by a Constitution that limits the federal government’s power, with laws that are applied to all, as written, from the most powerful to the weakest without discrimination. When the rule of law can be replaced with the wanton and arbitrary ideology that Obama has feverishly followed in his first one-hundred days, then a Supreme Court that will uphold the Constitution, as intended, is all that is left that separates us from anarchy.
Jim Byrd's website is A Skewed View.