Will a Stacked Supreme Court Diminish the Separation of Powers in the US Government?

Will a Stacked Supreme Court Diminish the Separation of Powers in the US Government?

A one-sided Supreme Court, in either direction, could be dangerous for the nation.

Justice Anthony Kennedy’s not-so-surprising announcement of his impending retirement from the nation’s Supreme Court has resulted in a firestorm of controversy and stone-throwing from both sides of political observers, as well as politicians.

It would certainly seem the appointment of his successor would be regarded as one of the most important actions in many of our lifetimes, since his retirement leaves the Court evenly divided among what most consider conservative and liberal judges, and the next justice could tip the court in one direction or the other for years to come.

Republicans, as well as many independents, voted for Trump in the 2016 election, and openly admitted doing so for this very reason, to keep a progressive President from stacking the court to the left.  Democrats however, are all up in arms, as would be Republicans if the shoe was on the other foot, warning of all sorts of civil rights being taken away by a conservative majority on the Court.

Of course, had Hillary Clinton been elected, the Democrats who are so worried about a Supreme Court leaning in one direction would be rejoicing in the fact that a Democratic president would making an appointment of a more progressive justice.

Should we be concerned that the Judicial branch of our traditional system of checks and balances is becoming a pawn of one ideological side or the other?  No one debates the question of whether the justices are left- or right-leaning in their interpretation of the Constitution and the laws enacted by Congress.  And perhaps it is impossible to have a completely centered court, where all justices are weighing the options and arguments and making their decisions based on what best fits the wording of the Constitution.

The Dems themselves changed the rules to set up a simple majority confirmation for Trump’s upcoming nominee, so it is unlikely that any amount of blustering and whining will stop the Court from becoming a 5-4 majority for the conservatives.

But what happens if another justice has to be replaced while Republicans are still in power?  It could certainly happen, particularly if Republicans ride a red wave in 2018, and Trump is re-elected in 2020.  Don’t rule that possibility out.  If the economy continues to grow and the Trump-Russia issue fizzles, a popular president could hold the majority in the Senate for another six years.

Given the age of some of the remaining liberal Court members, Ginsburg is 85 and Bryer 79, it is not inconceivable that Trump could replace four judges during an eight-year term.  A 7-2 conservative majority could shape American policy for the next four decades.

Should we be concerned that such an uneven court would be in effect a breach of the separation of powers, in that the court would almost always rule in favor of the conservative factions of our government?  The concept of ideological judges sitting on the Supreme Court should be troubling to both the right and left, because the pendulum could one day swing in the other direction.

It behooves us to insist on moderate nominees; judges that have shown a propensity for adhering to the writing of the Constitution, instead of a particular slant towards personal beliefs, as some on the Court today have shown.

“The interpretation of the laws is the proper and peculiar province of the courts. … Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

These words penned by Alexander Hamilton remain true.  The Justices of the Supreme Court should always put aside their personal beliefs in deference to the words contained in the Constitution, lest the Court abdicate its position as a balance against an elected tyranny.

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