Needed: a Constitutionalist for SCOTUS justice


Supreme Court Justice Anthony M. Kennedy recently announced his retirement from the Supreme Court of the United States. Justice Kennedy occupied a pivotal and often decisive role on the Court earning him the reputation of the “swing vote.”

Kennedy generally situated himself somewhere between the conservative and liberal viewpoints held by other members of the Court and his vote often determined the outcome in closely contested 5-4 decisions.

The Wall Street Journalreported that Kennedy did not like being referred to as the “swing voter” given the oscillating history of the term.

Kennedy, 81, was nominated to the Court in 1987 by President Ronald Reagan, and sworn in on February 18, 1988. President Donald Trump praised Kennedy as “a man who has displayed tremendous vision and tremendous heart.”

President Trump announced that his search for a new justice for the Supreme Court would begin immediately. He plans to make the announcement of his nominee on this coming Monday evening at 9 o’clock.

The President has interviewed some attractive candidates, but it is for certain that we need a constitutionalist for this strategic position. Alexander Hamilton in the 78thFederalist Paperdescribed judges as “the guardians of the Constitution.”

According to Elizabeth Slattery, who is a Legal Fellow and Appellate Advocacy Program Manager for the Meese Center for Legal and Judicial Studies, writes, “The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it – certainly not to rewrite it.

“For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.”

So, a constitutionalist is someone who embraces the desirability of the rule of law as opposed to rule by the arbitrary judgment of mere fiat of public officials.

According to the “Dictionary of the History of Ideas” edited by Philip P. Wiener, “The central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations of power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.”

The term “judicial activist” is often used to describe judges who rely on their own judgments of what is fair in the case rather than allowing the Constitution, the legislature or prior court decisions to dictate what the outcome of the case should be.

The Roe v. Wade verdict of 1973 is the landmark decision illustrating how activist judges not only altered the lives of millions of women, babies, and families all across America, but demonstrated how justices can interpret and create new rights not directly found in the U. S. Constitution.

Christine Craig, a Christian blogger, observed, “The basic qualm against the Supreme Court and their decision (in the Roe v. Wade case) is that they usurped the power of deliberation and representation from the democracy by judicially legislating from the bench. . . . The seeds of judicial activism in the Supreme Court grew until it fully produced a piece of judicial legislation that would not only adversely affect mothers and babies, but the entire nation.”

We should be concerned about who is appointed as the next justice of the Supreme Court. Judges often have more power over society than elected officials. Supreme Court justices have no term limits. The next SCOTUS justice could serve in his/her capacity for 35-40 years. The Congress can make and pass laws, but the Supreme can ultimately determine how the laws are applied and the impact their decisions will have upon our society.

Pray that President Trump will make a wise nomination for Supreme Court justice and that Congress will be guided by godly wisdom rather than partisanship and personal agendas when they vote to confirm or reject the nomination.

Justice Anthony Kennedy, SCOTUS, Supreme Court