The Supremely Vital Role of the Supreme Court
“We are very quiet there, but it is the quiet of a storm centre.” ~ Justice Oliver Wendell Holmes
President Trump has tapped Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the vacant Supreme Court seat created by the unexpected passing of Justice Antonin Scalia. Trump’s announcement — which was televised during prime time — was arguably one of the most important appointments Trump will make during his administration. Gorsuch was one of three court of appeals judges in contention for the appointment. The other two prospective nominees were William Pryor, who sits on the Eleventh Circuit Court of Appeals, and Thomas Hardiman of the Third Circuit. Hardiman — who I have had the pleasure of getting to know personally over the past few years — was the least polarizing of the three men on Trump’s short-list. Be that as it may, Trump gave Gorsuch the nod, and — barring any earth-shattering revelations — he looks to be a sure bet for confirmation. While some Senate Democrats have already threatened to filibuster, I have yet to hear any cogent argument which would suggest that Gorsuch should not be confirmed.
It saddens me that so few Americans take an interest in the vital role of the United States Supreme Court. The past year has been wall-to-wall coverage of the 2016 presidential election, with little more than a whisper about the Supreme Court. The sparse coverage that the Court did receive centered not on the number of 4–4 Supreme Court decisions since the passing of Justice Scalia, but rather focused on the propriety of Barack Obama’s nomination of Merrick Garland to fill the vacant seat during his final months as President.
But what’s the big deal with a vacant seat on the Court? Why should everyday Americans concern themselves with the Supreme Court at all for that matter? Why should we care that every controversial vote since Justice Scalia’s passing has ended in a 4–4 tie along ideological lines? The answers to these questions will have long-lasting implications, not just for the next four or eight years, but possibly into the next generation and beyond.
In the most elementary of terms, the Supreme Court’s function is to interpret the laws enacted by Congress, and certain actions undertaken by the Executive branch. This simplistic job description belies the incredible and far-reaching impact of the Court’s rulings. One need look no further than the Affordable Care Act (ACA) and the Defense of Marriage Act (DOMA) for examples of the resounding force with which the Supreme Court flexes its judicial muscles.
When a challenge to the constitutionality of the ACA’s individual mandate reached the high court, Americans learned that Congress may impose a “tax” for failure to purchase a product or service, but may not impose actual “penalties.” In 2015, the Supreme Court declared same-sex marriage a fundamental right, instantly abrogating state laws which proscribed or refused to recognize same-sex marriage.
The challenges to the ACA and DOMA are illustrative of the profound impact that the Supreme Court’s decisions have on everyday life in this country. But the Court’s ability to declare governmental actions unconstitutional is not limited to Congress. Indeed, the Executive branch is also subject to the Court’s authority. One recent example of the Supreme Court’s ability to strike down executive actions is the Court’s 2014 ruling in NLRB v. Canning, in which the Court ruled 9–0 that President Obama’s “recess appointments” to the National Labor Relations Board violated the Constitution.
The Court ultimately determines which laws and actions will remain on the books, and which ones don’t pass constitutional muster. Neither Congress’s legislative authority, nor the President’s executive authority is limitless. Legislative and executive actions are checked by the Supreme Court’s power to strike down laws that offend the Constitution. This is the brilliant concept of separation of powers at work — an enduring system embodied in the sacred text of the United States Constitution.
Another important aspect of the Supreme Court is the tenure of the nine justices. The Federal judiciary is a unique creature in contrast to nearly every other position within the Federal government. From district court judges to the nine Supreme Court justices, members of the Federal judiciary are appointed for life terms. Article III of the Constitution provides that, “[t]he Judges, both of the supreme and inferior Courts, shall hold their offices during good Behaviour.” Accordingly, Federal judges hold their offices until they resign, die, or are removed. The arguments over the wisdom of this practice has been, and will continue to be, a major point of contention among legal scholars and political pundits. One of the most common arguments in favor of lifetime appointments is the assertion that partisan elections inevitably influence judges’ decision-making abilities and impartiality. On the flip side of that coin is the argument that, by not being accountable to the electorate, judges may become complacent, arrogant, and perhaps even develop a mindset that they are untouchable.
Whatever the arguments for and against lifetime appointments may be, nothing short of a constitutional amendment will change this practice. Accordingly, a 49-year-old Supreme Court appointee (such as Gorsuch) could potentially outlast more than a half dozen United States Presidents, and influence generations of legislative and executive actions. The longest serving justice was William O. Douglas, who retired in 1975 after thirty-six years on the bench. At 49, Gorsuch could conceivably dethrone Justice Douglas as the longest serving Supreme Court justice.
Those of us who anxiously awaited President Trump’s announcement last Tuesday evening understood the incredible implications of his decision. The general reaction to Trump’s pick has been incredibly positive among constitutional conservatives ; but Trump’s decision is not the final chapter in this story. With Ruth Bader Ginsburg’s advanced age and failing health, and speculation that Kennedy may announce his retirement, the President could conceivably appoint two more justices during his first term alone. It is my sincere hope that more Americans take an interest in understanding the Supreme Court’s integral role in our system of government, and the substantial powers with which the high court is vested. The Court shapes the political and legal landscape of America, and its decisions affect every American in spectacular fashion.