A perfect example of the wrong way to think of the Supreme Court comes to us from President Obama's former White House Counsel. Kathleen Hennessey and Mark Sherman report for AP:
That is not how it is supposed to work. Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation. They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.
"The Supreme Court has not reflected where the American people have been on issues," said Gregory Craig, who served as White House counsel early in Obama's first term. "This is the first opportunity in many, many years to bring the court more in line with the American people."In this way of thinking, the Supreme Court is nothing but a third house of the legislative branch. It's job is to take the pulse of current public opinion and be "in line" with current views, declaring as a constitutional mandate whatever that current view is.
That is not how it is supposed to work. Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation. They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.
As the late Justice Scalia's record indicates, deciding on basic principles rather than with a finger in the political wind does not guarantee a win for either side of the ideological fence. Look at the Fourth Amendment cases. When the question was the meaning of "[t]he right of the people to be secure ... against unreasonable searches and seizures," the right actually in the Constitution, it was not unusual to see him ruling for the defendant. In Kyllo v. United States, the thermal imaging case, we had this line-up:
I do not believe there is any possibility that President Obama will nominate someone with the correct view on this essential question, so the "what if" question is purely academic. While Mr. Craig is not the current White House Counsel and won't be making the pick, I do not see any reason to believe the office culture has changed in that respect.
SCALIA, J., delivered the opinion of the Court, in which SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined ...However, when Fourth Amendment cases directly confronted the remedial question of excluding evidence from criminal trials -- a completely fabricated pseudo-constitutional rule with utterly no basis in the text, history, or original understanding of the Fourth Amendment -- he consistently was on the pro-truth side. See, e.g., Herring v. United States.
I do not believe there is any possibility that President Obama will nominate someone with the correct view on this essential question, so the "what if" question is purely academic. While Mr. Craig is not the current White House Counsel and won't be making the pick, I do not see any reason to believe the office culture has changed in that respect.
Leave a comment