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Why the US Supreme Court Matters

Oct 7, 2018

Many non-Americans – and probably many Americans as well – likely do not understand all the fuss, intrigue and controversy that erupts when a justice for the Supreme Court is nominated. Recently there have been many heated political and ideological battles that have broken out whenever a potential justice is named.

Why is this? Well, to understand what we just witnessed with the Kavanaugh nomination and confirmation, we need to know a bit about the Supreme Court of the United States (SCOTUS) and its history. So let me offer a very brief overview here.

This court is the highest court in the land. Like America itself, it has evolved and expanded over the years. First established in 1789, it originally just dealt with a small number of legal cases. Today there are over 100 cases reviewed each year by the court (out of thousands submitted).

Earlier on there were six justices on the court, but now there are nine. They – along with lower court judges – are appointed by the sitting president, and they have a life-long tenure (unless they resign or are impeached). Not too long ago the nomination and confirmation process was relatively straightforward and did not drag on too long.

But the politicisation of the courts (at all levels) and the advent of judicial activism has meant that each new nomination (especially if named by a Republican president) becomes bogged down in political controversy and lengthy, bitter debate.

As I wrote a decade ago:

The problem is, unaccountable judges, instead of legislators, are making and repealing laws, and internationalising law as well. Judges have overstepped their bounds, and their agendas are usually at odds with the majority of those they claim to serve. In fact, the rule of law has been replaced by the rule of judges. This usurpation of the democratic process should be of concern to us all.

Indeed, the rule of law is of utmost importance, and judges are to be neutral in its application, and not seek to push their own political and social agendas. Judges are meant to serve the people and the laws the people helped to make, and not rewrite the law books and promote Political Correctness. But that sadly has been exactly the case for a number of decades now.
billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/

The problem is, the courts have effectively been legislating in America. But the three-fold nature of the political system in the US is supposed to function differently. The Founding Fathers were very concerned to have a system of checks and balances, and they did this by means of ensuring that there were three clearly defined and distinct branches of government:

-The Legislative Branch – Congress (both houses) makes laws and passes legislation, etc.
-The Executive Branch – the President makes laws official, appoints cabinet members, etc.
-The Judicial Branch – the Courts review legislation, etc.

All this is laid out in the US Constitution. But of late the courts have overstepped their boundaries, often making up things as they go along. And the classic case of this was the infamous 1973 ruling on abortion. In Roe v. Wade seven of nine justices decided that there is some fundamental right to abortion to be found in the Constitution.

It thus struck down the laws of all 50 US states on the matter, and the culture wars well and truly erupted soon thereafter. Another – of many – obvious examples of judicial activism at the highest level was the 2015 Obergefell v. Hodges decision to legalise homosexual marriage, this one with a majority of five to four.

So as judges become increasingly active in their roles, the various ideological camps see how important they can be. The left of course sees things like abortion on demand and homosexual “marriage” as sacred cows that can never be touched.

Never mind that the will of the American people was simply overlooked in both cases, and a handful of unelected and unaccountable judges decided how the nation would go on such contentious and controversial issues. And the left is now utterly repulsed at the fact that a conservative is in the White House, and he is appointing basically conservative justices.

The current state of play

So far the Trump administration has named two Supreme Court justices, and both eventually made it through. In February 2016 we had the untimely death of conservative justice Antonin Scalia, so in April 2017 by a 54–45 vote Neil Gorsuch was conformed as a member of SCOTUS.

And of course just now Brett Kavanaugh got in with a 50-48 vote, succeeding Justice Anthony Kennedy. I have penned two recent articles on him. This one I did earlier today upon him winning the confirmation vote: billmuehlenberg.com/2018/10/07/the-kavanaugh-confirmation/

And this when he was first nominated: billmuehlenberg.com/2018/07/10/kavanaugh-scotus-and-abortion/

To see how important these two appointments are, consider some recent court history. For quite a while we had no conservative majority on SCOTUS, and for some years we had roughly a three-way split: three conservative, three moderates, and three liberals. Often however the moderates sided with the liberals. But now for the first time in decades we have the possibility at least of a conservative majority.

One’s political and ideological stance certainly has a very clear bearing on contentious court cases. In the 2015 gay marriage case, for example, we had the majority comprised of Kennedy, joined by Ginsburg, Breyer, Sotomayor, and Kagan, while the four dissenters were Roberts, Scalia, Alito and Thomas. There we see how the votes basically went along ideological lines.

As to the current court, we will have to wait and see how the votes will go in forthcoming cases brought before the court. Here is a rough breakdown of the current court. I offer the names, who appointed them, and their age:

Basically conservative:
Clarence Thomas – Bush Snr., 70
Samuel Alito – Bush Jnr., 68
John Roberts – Bush Jnr., 63
Brett Kavanaugh – Trump, 53
Neil Gorsuch – Trump, 51

Basically liberal:
Ruth Bader Ginsburg – Clinton, 85
Stephen Breyer – Clinton, 80
Sonia Sotomayor – Obama, 64
Elena Kagan – Obama, 58

Here we see pretty clear patterns. Leftist presidents appointed leftist justices, while conservative presidents appointed conservative justices – more or less. Of course in the recent past it did not always work out that way. For example, Anthony Kennedy – appointed by the conservative President Reagan – turned out to disappoint in some areas.

The issue of the ages of the current justices is quite important. As mentioned, these justices are appointed for life. As can be seen just above, two of the liberal justices are still relatively young, while two are getting rather elderly. As to the conservatives, none are ancient, and three or four should still have quite lengthy terms ahead of them.

The left is already apoplectic at Gorsuch and now Kavanaugh getting in. And they know full well that Ginsberg sure isn’t getting any younger. So she might not make it through the next two years of a Trump presidency. And if he is re-elected in 2020, he almost certainly will be called upon to name a replacement for her, and maybe for Breyer as well.

All that frightens the leftists to no end. They are already terrified at the thought of five possible conservatives, and they will do anything they can to prevent any more conservatives getting in. They are petrified that their sacraments of abortion on demand and fake marriage might be re-examined by SCOTUS, and who knows, either be repealed, overturned or modified to some extent.

All this explains the militancy and mobocracy we have seen over the past few months concerning the Kavanaugh nomination. The left has had a terrific run with activist courts for the past half century, and now they can see that this might be coming to an end. They are mortified by all this, and they are now resorting to any sort of lies, violence, intimidation and thuggery to resist it.

So expect to see things hotting up in the days ahead. Not only is the militant left intent on still opposing Trump and Kavanaugh, but they will continue to ramp up their opposition to anything and everything that comes out of the current White House.

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11 Responses to Why the US Supreme Court Matters

  • Thanks Bill,
    A very helpful article. I still remain concerned about the suspicious death of justice Scalia. Let us continue to pray for the safety of the 5 conservative Judges and their families, and also the President. America may well be heading into much conflict in the next 24 months.
    thanks again Bill

  • Yes Phil it was a bit suspicious.

  • Thank you, Bill, for explaining the history of the United States Supreme Court, the way it is supposed to work, and the list of current judges and their respective labels of “liberal” or “conservative.” Before anyone gets too carried away by Mr. Kavanaugh’s confirmation, I would like to tell you that Mr. Kavanaugh, when he first was mentioned as a possible nominee, said he WOULD NOT seek to overturn Roe v. Wade because it already is an established law. So, this should be a great disappointment to conservatives (and especially to pro-life Christians) who assumed a conservative judge would be pro-life and would want to make abortion illegal. Apparently Mr. Kavanaugh is not pro-life.

    Furthermore, my family and I were literally sickened when Senator Susan Collins (Republican of the State of Maine) gave her speech about her decision to vote in favor of Mr. Kavanaugh’s confirmation. Right on television, she admitted she and Mr. Kavanaugh had made a deal: she would vote for his nomination provided he would promise to be in favor of abortion because SHE is in favor of abortion. So much for the mistaken belief many Christians have that Republicans are pro-life when they clearly ARE NOT!

    The abortion issue was supposed to be a women’s rights issue until employees of Planned Parenthood exposed the organization’s practice of selling parts of aborted babies to the medical and pharmaceutical industries. As ever, “The love of money is the root of all evil,” as all believers should understand, and it is NOT just a women’s issue because big business (medical and pharmaceutical industries) and big money obviously are promoting the abortion industry. For decades the medical profession has wanted to experiment with human beings, but the spectre of Nazi Germany discouraged this aim. With abortion being legal now, the medical industry can and does use the remains of aborted babies for its experiments and transplants. Recently I learned that aborted fetal tissue has been used to grow vaccines, and any reasonable person can understand that such vaccines could be contaminated with abnormal cells from defective fetuses that have been aborted. Who knows but what autism, various other neurological disorders, and cancer can be caused by such vaccines once they are injected into the bodies of normal, healthy children?

    The other aspect in the debate against Kavanaugh is the man’s character. Personally I at first was a bit skeptical of Dr. Christine Blasey Ford’s accusation that Kavanaugh, at age 17, had tried to rape her. However, a few days later the news media showed Kavanaugh’s school yearbook and the gross, insulting things he had written about his female friends. This was enough to convince me that Doctor Ford was telling the truth….

  • Thanks Sheila. Given that you sent in several lengthy and rather impassioned comments, covering at least a half dozen different topics – some of them obviously pet peeves of yours – please allow me the editorial right to cut things down a bit here.

    As to Collins, she is of course a pro-abort, liberal Republican. We all know that. I too heard her speech, and we all can see it online or read the transcript: https://www.vox.com/2018/10/5/17943276/susan-collins-speech-transcript-full-text-kavanaugh-vote

    As anyone can see, she did NOT cut a deal with Kavanaugh. He said nothing to her that he did not say many times elsewhere. Obviously he is not in a position to launch a full-scale assault on Roe – or anything else for that matter – during his first week or month or even year in office. We are talking about a lengthy course of events and how they may transpire over the span of years if not decades. And had you read my earlier pieces on him, you would have seen that I made it clear that we cannot know for certain where he or the new court will go with abortion in the days – and years – ahead. As I said in one piece:

    Since abortion is likely to again become a key issue here, where does Kavanaugh stand on this? He seems to not have directly ruled on this too often…. So it is not entirely clear exactly which way he will run with the issue – if he is voted in. But the abortion issue is huge, either way…. Bear in mind that during the Reagan years the majority of the nine justices were Republicans and “conservative”. Yet nothing happened then on the abortion issue. Thus there is no guarantee that if Kavanaugh gets in, the ’73 decision will be revisited. So it is early days yet.
    https://billmuehlenberg.com/2018/07/10/kavanaugh-scotus-and-abortion/

    Not only did I nowhere claim he was the long-awaited Messiah, but I did not state that Roe would definitely disappear if he got in. But no conservative that I know of has made such grandiose claims either. Most of us saw him as a sort of establishment man, and I and many others had preferred other potential judicial candidates instead of him a few months back. But he was picked, so we have to deal with him, and not some preferred person who was not being voted on. All we can say is we will have to see how things pan out on this and other important issues in the months and years to come. And these matters are not up just to him, but all nine justices of course – among other things.

    And to be honest, your comments about Ford, etc., are rather worrying – and have been heard a million times over from the Democrats. Sorry but I just am not buying all the leftist spin on this. The truth is, Cavanaugh was over-investigated by the Senate. No one else nominated for SCOTUS ever faced that much overkill. As Mitch McConnell (someone I don’t always go along with) rightly explained earlier:

    This evening, the Senate will receive the results of the FBI’s supplemental background investigation of Judge Brett Kavanaugh. This is now the seventh time the FBI has looked into Judge Kavanaugh’s background. And this information comes on top of what has already been one of the most thorough, most exhaustive Senate reviews of any Supreme Court nominee in our nation’s history. Five days of public hearings. Sixty-five private meetings with Senators. More than 1,200 responses to written questions from members. More than 500,000 pages of documents for review — the most produced for any Supreme Court nomination in history. And the 300-plus opinions Judge Kavanaugh has issued during his 12 years on the D.C. Circuit. And now, Senators will have the evidence collected by this additional background investigation for their consideration as well. Members will have the opportunity to review the investigators’ records. And, as is the standard procedure, designated Judiciary Committee staff members with the required clearances will be authorized to brief members.

    Senate Dems and lefties did not even deal with his 300 opinions – instead they pulled out his High School yearbook for heaven’s sake! This was a leftist witch-hunt from day one, and he was declared to be guilty of all sorts of wild and unfounded accusations, despite all the evidence to the contrary. Sorry, but I am not really interested in debating this forever here. It already has been dealt with, and I will run with the evidence that we have, and not with the tired histrionics from the Democrats and the left.

    But thanks for sharing your thoughts.

  • There is even more to it than that. Trump is busy appointing large numbers of conservative judges to the Appeals Courts – who are in a position to head off the more outrageous claims before they get to the Supreme Court.
    Shortly after Trump’s election I wrote I blogged Why I would have voted for Trump if I were an American:
    “The United States is a defective democracy in which the most important laws are made, not by the people’s elected representatives, but by a handful of unelected judges. … The results of all this judicial activism were predictable. People looking for radical social change don’t lobby their elected representatives; they lobby the judges. And when a vacancy in the Supreme Court occurs, they behave like the citizens of an autocracy when the throne becomes vacant.”

  • When originalists dream,

    Now that Kavanaugh’s been confirmed and in place we now have a Firm Five (though Roberts is a little too iffy IMO). Ruth the Buzz, who delusionally thinks she’s in charge of the length of her life span, may suffer a snip of the Abhorred Shears of Atropos sooner than she thinks, with DJT naming her replacement (yes, the Senate will remain GOP). Breyer, longing to spend his final days eating Breyers® Ice Cream with his grandkids and realizing that he will now be facing a Solid Six, responds to the loss of the Buzz, by crying, “What’s the use; I can no longer effectively legislate on behalf of the Democrat Party from the bench,” and resigns. The Don goes into action, and the Solid Six becomes the Solid Seven.

    Then, in late-2022 or mid-2023, Thomas & Alito, each of whom will by then be in his mid-70s, come to DJT (yes, there will be a second term), announce their plans to retire, thereby giving the Don time to line up their respective replacements. Thomas & Alito condition their retirements on the Don’s promise to “settle all family business” and to replace them with people in the mold of Scalia, with each nominee to be in his/her mid-40s. In time Roberts does the same, though he’ll be coming to President Mike Pence. The Solid Seven remains solid for decades.

  • Dear Sheila,
    I have learnt over the last 20 years to be very skeptical of the MSM in the USA. It becomes very clear it is manipulated. Fake news is common. It has taken 36 years for Dr Ford to make these claims and they have significant holes, as the prosecutor Rachel Mitchell clearly identified.
    Please don’t believe everything you hear or read.
    God bless you,
    Phil

  • Phil and Bill,
    Thank you for your replies. I was only trying to explain the disappointment that the pro-life movement has suffered and especially the viewpoint of individuals who are pro-life. I am certain the medical and pharmaceutical industries are connected with abortion and big money, and it is far more serious than just a woman’s right to choose as the public may want to believe.

  • Thanks Sheila. As a prolifer I of course am often disappointed with politicians and others who let our side down. And I am quite aware that Big Pharma and Big Medicine is not always exactly prolife! But this and related posts were about SCOTUS and how it might look in the days ahead.

    And one must be clear what is meant when we say “conservative”. I and others simply mean that Kavanaugh and Gorsuch are constitutionalists, originalists, and keen on the separation of powers. That is how they are ‘conservatives’. That does not mean they will vote on every social, cultural and political issue exactly how conservatives and pro-lifers want them to. So as I keep saying, we will have to wait and see. And I would much prefer these two recent appointments to those Hillary and the Dems would have nominated.

    Thus the new 5-4 majority is a constitutional majority, a rule of law majority, but not necessarily in every case a ‘conservative’ majority. Indeed, the highest court is supposed to be above left and right. The court justices are to faithfully study and assess the law according to its original intent, not make the law. The judges should interpret the law as independent arbiters. They are to be a deliberative body and should not be legislating from the bench. But hopefully we will see some decisions in the future more to our liking – time will tell.

  • Thanks Sheila,
    I share your horror at the quantum of abortions across the USA and Australia. The behaviour of the QLD labor government recently on abortion makes me very angry. God bless. Phil

  • A judge should have a judicial temperament, that is, ruling from established law and not from personal preference. That being said, every judge has been a surprise after nomination. Sandra Day O ‘Conner, Kennedy and Roberts come to mind. As they develop a philosophy of judging, they tend to accept roles moderate liberal or conservative if you want Roe v Wade overturned, Kavanaugh is not the guy. So the demons of hell sent after him were worthless, ugly. If Republicans hold the Senate ,which is expected, more conservative judges may make it on to the court and possibly lots more issues than abortion. Perhaps property rights, now if protection of religious freedom etc will flourish with Kavanaugh. Take the long view.

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