Another Court pick – Brett Kavanaugh in this case – and the partisan circus is revving up. Why? Well, so much is at stake since now we have unelected commissars, appointed for life, reaching way beyond the law, sitting on the bench. What happened to the republic? Will these black-robed grand viziers practice self-restraint? Don’t know, but nominating people who will is an absolute necessity.
How did we get to this juncture of near imperial rule? Sadly, Brown v. Board of Education did much to send us in that direction. While legally mandated segregation is a blot, the Court christened “social jurisprudence” as the means to eradicate it. So, it isn’t the law anymore as the basis for many rulings. It’s a judge’s conjecture on the current state of society. As a result, judges are unhinged from the tethers of the law, whether it be the Constitution or statute.
The 1954 Court, anxious to end the practice of forced segregation, couldn’t rely upon tried-and-true “originalism” to make the desired legal rendering, since the 14th Amendment’s authors of 1868 had enshrined segregation in their own contemporaneous laws (mandates for segregation in DC public schools). To achieve the desired end, they fashioned a new role for themselves as legislators, or pontificators on our social conditions. Discontent and ambition has a powerful new avenue for satisfaction. If you don’t get your way at the ballot box, recruit a judge among the 677 District Court black robes littered throughout the country.
Avoiding the pitfalls of lifetime-tenured lawmakers as we pursue justice requires some threading of the needle. Scalia’s “textualism” may get the thread through the eye. The law’s words, not legislative history, point the way. Here’s the logic for ending segregation using textualism: 14th Amendment’s citizenship clause for blacks > incorporation (applying the Bill of Rights to the states) > due process protections in the 5th and 14th Amendments (which includes equal protection) > forced segregation violates the clear wording in the Constitution. No need to resort to the witchcraft of “social jurisprudence”.
Brett Kavanaugh could be a nice addition to the cause of self-restraint. For most of the endless list of pet causes, it would be nice if people realized that they must win legislative elections and not turn to a mommy in a black robe. Not prevailing normally means too many people disagree with you. Live with it.
RogerG