Some time ago, I noted in a column that we aren’t going to see a real knock-down, drag-out, blood-and-teeth-on-the-floor fight over a Supreme Court nomination until a conservative justice retires.

(Or, lacking that, when Anthony Kennedy — “Mr. Majority Vote” — leaves the bench.)

Either way, that will be a shift in the balance of power of a magnitude unseen since the days when Ronald Reagan wanted to build Star Wars and Mikhail Gorbachev added up the numbers, threw down his cards and left the table.

Elena Kagan, a liberal who replaced a liberal, did not shift that balance enough to make a filbuster-until-the-sun-burns-out worthwhile for the GOP.

Of course, much depends on who inhabits the Oval Office and what the party balance of power is in the Senate when the Court majority finally hangs by a thread. It seems clear that the current liberal majority in the Senate could be somewhat smaller after the new year — if it exists at all.

True, Justice Kennedy, who can just as easily vote one day with the court’s make-it-up-as-we-go-along liberals and the next with its conservatives, is a balance of power all by himself.


Which is why liberals think we have a conservative court (because some decisions please the right) and conservatives sweat over every important case because they have no idea if Kennedy’s choice of cornflakes over scrambled eggs for breakfast will determine which way he votes this time around.

This is all a product of two harmful judicial trends that have colored our court cases ever since Marbury v. Madison.

The first is that the court, intended by the founders to decide cases involving lower courts’ proper application of the laws, safeguard procedural rights and settle disputes between states, now has become our Supreme Legislature.

It not only creates policies for a nation but writes its own detailed laws to enforce them (which is exactly what it did in Roe v. Wade, as one example among many. No legislature invented “trimesters,” after all).

We are at the point where we enter voting booths to cast ballots for politicians whose most influential act in office will be either to select Supreme Court nominees (if elected president) or vote for or against them to take seats on the bench (if members of the Senate).

Recall that we went though a Revolution to live under laws we passed ourselves.


In the founders’ eyes, Congress, being a coequal branch of government, was as capable as any court of determining the constitutionality of any statute.

But now we have given the ultimate power over the lawmaking process to a group of people who, when they take office, are (in practice if not quite in theory) as unaccountable as any ancient king or queen.

And thus we have given up self-government, except in those areas in which the Court has not yet handed down a ruling. That sphere of freedom grows smaller every year.

So, what amounts to a Divine Right of Justices created out of mist and fog is what makes court nominees so important.

It’s why Teddy Kennedy could slime “Robert Bork’s America” as a place where the poor would be trampled, the powerless abused and puppies and kittens left shivering in the snow. It was all base slander, of course, but the real question is, why did we think there could be such a thing as “Justice X’s America” to begin with? That is, why did we ever give justices so much power over us?

As was noted, we will discover just how important this is when a nominee is put forward who will become the new fifth vote for a given point of view.


The second thing is that it’s entirely our fault that we have let things get to the point where justices can rule as they wish without let or hindrance.

Too many people, for whom the regular processes of democracy are either too slow or too uncertain, have permitted this to occur because they or their causes profit by it.

And it’s hard to see how it will all change, at least without a sea change in our attitudes toward reasserting popular sovereignty though the so-far unused mechanisms the Constitution provides to restrain the Court’s power.

Congress could impose judicial term limits, restrict the Court’s jurisdiction and, in extreme cases, consider articles of impeachment. That such proposals will elicit gasps of horror from the liberal elite shows how far we have departed from self-government.

At this point, we will hear the cry that “We need the Court kept free from interference (actually, accountability) to defend our rights!” I can think of some examples of that (the Second Amendment rulings being the most recent), but the 50 million dead babies left in Roe’s wake testify that depending for your rights on the Court’s good will can be a fragile thing, indeed.

Instead, interest groups see thatif it is far too difficult to persuade 300 million Americans to agree with their stand on a given issue, all they have to do is gin up a suitable court case and then merely persuade five unelected justices to vote the way they want.


Even if no single group or point of view succeeds all the time, enough do over time to make the Sovereign Court a popular and effective way to bypass democratic rule.

So, when Justice Kennedy — or Clarence Thomas, Samuel Alito, John Roberts or Antonin Scalia — leaves the bench, there will be a battle that will make the D-Day invasion look like a hard-fought game of Scrabble.

We have, as they say in Texas hold-’em, gone all-in on the power of the Supreme Court.

The next nominee, if he or she replaces Justice Kennedy or one of the four conservatives, will determine who takes home the entire pot.

Whoever wins, Bork will think he got off easy.

M.D. Harmon is an editorial writer. He can be contacted at 791-6482 or at:


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