The Gorsuch Nomination: Prelude to Armageddon

February 10, 2017 | Posted in From the Director

The nomination of Neil Gorsuch to the United States Supreme Court has been cause for great excitement on the part of Americans concerned about life, marriage, and religious freedom.  The very fact that his nomination represents a moment of such triumph, however, should also serve as a sobering reminder that our constitutional order is very much out of order.

The president of the United States is often referred to as the “most powerful man in the world,” yet his greatest power, aside from commanding the awesome might of the American military, may lie in his ability to appoint someone most Americans have never heard of to a panel that Alexander Hamilton promised would have “neither force nor will, but merely judgment.”

The Founders’ did not anticipate that the US Supreme Court would someday become the preeminent lawmaking body for important social policy.  It was originally thought that Congress’ Article I constitutional status would ensure its place as primus inter pares, first among equal branches, and for the majority of America’s history this was the way things generally were.

That was before Congress began its tireless effort to diminish itself, both in terms of its reputation and its power.  Nowadays, the presidency has supplanted a willingly supine Congress as the branch of government our cult-of-celebrity culture fixates on when it wants what it wants.

But even a president and a unanimous Congress together cannot make law on certain issues.  This is supposed to be the case where the Constitution explicitly places an issue beyond the reach of majorities.  It is very much NOT supposed to be the case where the Constitution is silent but judges decide to fill in the blanks with their own personal preferences.

It is a strange kind of democracy where the highest power resides in the unelected and largely unknown, and thus the Supreme Court’s overtly political actions in Roe v. Wade and Obergefell v. Hodges seem more akin to a coup d’etat than to acts of judging.  Having seized for itself the power to unilaterally decide the most controversial questions — i.e. the questions a democracy should pride itself on deciding democratically — the stakes for judicial nominations are suddenly much higher than the process was designed to bear.

The Gorsuch confirmation hearings will undoubtedly be an embarrassing spectacle of hyperpartisanship, but it is what comes next that has the potential to generate unprecedented levels of media-driven hysteria.  If the next vacancy occurs while Donald Trump is still president, and is the result of the retirement or death of one of the pro-Roe five, a fifth vote to overturn Roe might (and should) be on the table.  That will, suffice it to say, not be a moment of national unity.