Now that Associate Justice John Paul Stevens has announced his retirement effective at the end of the current term, President Obama will soon be announcing his second pick for the Supreme Court. Let’s hope he learned at least a bit about the Constitutional role of the Supreme Court since his nomination of Sonya Sotomayor just about a year ago. This is what he said at the time when asked the type of individual he would be looking for to replace Justice David Souter:
“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
Excuse me Mr. President, but according to the U.S. Constitution and the principle known as “rule of law” that govern our nation, the role of a Supreme Court Justice is based solely and completely on “abstract legal theory”. The law is the law and the Constitution is the Constitution, and the Supreme Court’s role in our representative democracy is to make decisions about the legality of laws and lower court decisions based entirely upon their constitutionality. “Empathy and understanding of how our laws affect the daily realities of people lives” have no legitimate place in the decision making process that a justice must use.
By now the liberals reading this are probably thinking that I have a heart of stone and ice water in my veins, but that isn’t the case at all. Empathy and understanding certainly have a place in running our government, passing our laws and “looking out for the little guy”. And that place rests soley among the members od the legislative and executive branches, NOT the courts.
New laws that right social wrongs and “level the playing field” are sometimes needed, and Congress has been pretty good at writing and passing them throughout our nation’s history. But when a law is contrary to the Constitution, regardless of how good the the lawmakers’ intentions when they passed it, the Supreme Court has a legal and moral responsibility to cast their personal opinions and their own good intentions aside and declare the law unconstitutional. If the problem being addressed is so grievous or outrageous that Congress feels that it simply MUST do something about it, they can either rewrite the law to conform to the Constitution or amend the Constitution in a way that makes the law that was previously struck down ultimately constitutional.
Critics of this approach – the correct approach – will say that it’s incredibly difficult to pass a constitutional amendment and get it ratified by the states. They’re right. And that’s by design. The founding fathers were wise enough to know that a Constitution that can be changed on a whim is pretty much worthless, so they made the process to amend ours both difficult to accomplish and lengthy. But the Constitution can be amended, and it has been numerous times since our nation was founded.
It is my hope that President Obama will honor the Constitutional role of the Supreme Court and nominate someone who will strictly interpret the Constitution when deciding how to vote instead of simply trying to “make new law” on his/her own. After all, we have a highly-paid Congress who have been tasked with that job, and all things considered thay have historically done a pretty decent job at it. And when they failed, the Supreme Court has set them straight.