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The Vote on Brett Kavanaugh Won't Solve America’s Deeper Supreme Court Problems

September 28, 2018 in Economics

By Roger Pilon

Roger Pilon

The circus surrounding the Supreme Court nomination of Judge Brett Kavanaugh has shown beyond any doubt how
deeply divided America is. And when the dust settles, we’ll still
be divided. So too will be the Court. To see why, and how we got
here, we need to start at the beginning.

In a nutshell, our founding documents were designed mainly to
secure liberty under limited government, especially after the
Civil War amendments were added to the
Constitution, checking what states could do. We didn’t always abide
by those ideals, but generally we lived life in the private sector,
our relationships ordered by common-law principles of property and
contract.

Early 20th century progressives rejected that vision
fundamentally. They wanted to promote social and economic change
through statutory law. But the courts rejected much of that
legislation on constitutional grounds, most sharply during
President Franklin Roosevelt’s first term. After his landslide
reelection in 1936, he tried to pack the Supreme Court with six new
members. Congress rejected the scheme, but the Court got
the message.

Over the next few years, the Court opened the floodgates for the
modern redistributive and regulatory state, reduced economic
liberty to a second-class status, and, in 1943, allowed Congress to
delegate ever more of its legislative power to the executive-branch
agencies Congress had been creating. Today, this is where much of
our law is written—not by Congress, but by unelected
bureaucrats. The Constitution was thus turned on its head and
politicized.

However the issues
immediately before us are resolved, we need to focus on the bigger
constitutional questions underlying them.

As statutory polices replaced common-law principles, things have
grown only more complicated. In short, while the Court was
“active” in authorizing these changes, it was
essentially deferential to Congress, the president and the states,
which allowed government to grow, unchecked by constitutional
constraints. That posture would change in the 1950s, however, when
the Court finally turned to civil rights. But not all of that
liberal activism was grounded in the Constitution, as with the
Court’s 1973 abortion decision, and that led to a
conservative backlash.

Thus, we now had two jurisprudential schools: liberals urging
“judicial activism,” to promote “evolving liberal
values,” conservatives urging “judicial
restraint,” making peace essentially with the New Deal
Court’s deference to the political branches. With the
election of Ronald Reagan, the conservative school came to the
fore—and the brutal fight over his nomination of Robert Bork to the Court in 1987 saw all of
these forces collide, beginning a three-decades-long battle for
control of the Court.

But neither camp is grounded in the …read more

Source: OP-EDS

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