The most important decision President Donald John Trump will make is the appointment of the next and the ninth Justice to the Supreme Court of the United States of America, affectionately known as SCOTUS. Do you agree? I do.
The Supreme Court now consists of seven justices and Chief Justice John Roberts while the seat of the former and the great Justice Antonin Scalia remains open. Four justices of our Supreme Court are liberal to the core, including Ginsburg, Breyer, Sotomayor, and Kagan. Four are conservative including Roberts, Kennedy, Alito and Thomas. The four liberal justices vote in lockstep while the four conservative justices do essentially the same but not altogether. Justice Kennedy, once the so-called swing vote on the court can occasionally decide with a mentality. But for the most part, the court is divided four and four and certain critical decisions of late have reflected that judicial deadlock and stalemate. Such a stalemate essentially results in no decision, but rather an upholding of the Appellate Court decision making as that court decided, or sending back the litigation to the Appellate Court to rethink and re-decide the issues. A non-decision by the United States Supreme Court essentially means that there can be nine different decisions throughout the Appellate Court divisions, each division having its own law so to speak and consequently legal chaos in our country.
Supreme Judicial deadlock can not happen ever again so long as there are nine justices. Decisions by sheer numbers must be made. The Supreme Court at least will decide all future decisions with a vote 5-4 and those five justices with that decision will consequently provide the law for and tell all Americans how to live from that point forward. Often, I find it incomprehensible that we the people, some 330 million of us, are ultimately dependent upon the legal decision making of:
FIVE MEN OR WOMEN
Nothing is perhaps more un-Democratic than that.
The power, the unbelievable power of this ninth justice will in so many critical ways determine the law of the land. A brand new justice, new to the Supreme Court, with at least some uncertainty how he will decide will affect all of America, and indirectly much of the world at large. What an awesome responsibility. And, whether or not this man is essentially liberal or conservative will determine decision making for years to come.
That ninth justice of the Supreme Court will be Judge Neil Gorsuch, now member of the U.S. Circuit Court of Appeals for the 10th Circuit located in Denver. By all accounts, observations, evaluations of the man and his decision-making, Gorsuch is conservative. As the ninth justice, Gorsuch may very well move the Supreme Court back to an essentially conservative majority with essentially conservative SCOTUS decision making to follow. One could say that in many critically important areas of American law, Gorsuch, this brand new Supreme Court Justice and the ninth member of our illustrious court will:
DECIDE THE LAW OF THE LAND
For me, that is hard to comprehend, the power our Constitution invests in ONE MAN. What do you think? Conservatives of course are delighted and relieved. Liberals and progressives are angry, disappointed and determined to fight the nomination. But, they will lose. Gorsuch will become the Ninth Justice of the United States Supreme Court, one way or another. Mitch McConnell, Leader of the Senate and his Republican Senate cohorts have promised to confirm the nomination of Gorsuch whether by normal Senate parliamentary procedures, or by invoking the nuclear option which would contain filibustering, negate the 60 Senate Affirmation Rule and require only a simple majority of Senators to confirm Gorsuch. If so, expect the confirmation of Gorsuch perhaps by the end of April 2017. The United States of America will then have, once again, a conservative leaning Supreme Court and a worthy successor to Justice Antonin Scalia will have been appointed and confirmed.
Scalia was a conservative, a real, true, conservative. In fact, Scalia, his way of thinking and his methodology of judicial interpretation impacted Supreme Court justices perhaps more than any other, ever. Scalia had a very firm and convicted approach to the Constitution and the law. The Scalia principles of Jurisprudence began with the principle of:
TEXTUALISM
Scalia believed that the law, whether statutes or the Constitution itself must be interpreted and applied exactly according to its text. Judicial decision making should never take into account policy, current thinking, even what the Congress may have thought, and certainly not what any Justice of the Supreme Court thinks. The law, said Scalia, should never be politicized. The actual text, the law word by word, should be applied as-is. We the people can only wonder whether or not Justice Gorsuch will be a textualist like Antonin Scalia. Scalia believes secondly in the concept of:
ORIGINALISM
The law, he said, was to be interpreted at the time it was written and when it was enacted. The law should be applied as it was then, at the time, and not now with perhaps fundamentally different thinking and interpretation. The law can change, he said, and certainly can its interpretation, but we can not apply that afterward thinking or policy to the matter at the time. The law is the law as it was and as it is. Apply it and do not interpret it. We the people can only wonder whether Justice Gorsuch will be an ORIGINALIST, understanding and implementing the law as it was at the time it was applicable. If not, the thinking of this new Justice will be paramount to the actual law itself.
Scalia firmly believed in the right of the people to legislate. The people, not governmental agencies like counties, states and of course the federal government we the only constitutionally authorized legislators, making the laws and living by them and certainly not the Supreme Court of the United States. SCOTUS, in effect, was the final interpreter of the will of the people and the enforcer of the law as-it-is. This idea of popular government, legislation as it is or legislation as the people would change it was the ultimate and final law of the land, not subject to the Supreme Court interpretation. If for example the people wanted new rights, or the expansion of existing rights, then the people through their representatives should change those rights and no other. Governments, especially states, and even at the federal level have sought to restrict certain of those rights, especially some granted by the First Amendment to the Constitution. This organic, politically-driven approach to Constitutional interpretation is exactly contrary to Scalia Judicial Principles and Supreme Court Justice Neil Gorsuch will be the deciding vote with regard to the interpretation and protection of existing Constitutional rights or, as the trend seems to be, the creation and implementation of new rights (i.e. the right to gay marriage). We can only wonder how much faith and confidence in the American people Gorsuch will have, especially in the right of we the people to make and implement the laws. That is, how Scalia in thinking Gorsuch will be.
Justice Scalia believed firmly in the right and duty of the American people to the aggressive defense of Constitutional Rights including and especially the First Amendment. If, said Scalia, the people do not so defend, and aggressively so, those rights will be diminished in time and even potentially eliminated. Scalia, in his brilliant legal opinions and decision making, believed in the principles of Ronald Reagan who reminded us time and again that freedom once lost, is lost forever. It should be, said Scalia, the duty of every American, the absolute requirement of every American to do whatever is necessary to protect those freedoms. We the people can only hope that Justice Gorsuch believes the same way and will encourage the American citizen to so act and at his level, protect and defend the literal and actual freedoms granted by the Constitution and the Amendments, including and especially the right of Freedom of Speech. Time will tell.
Scalia firmly believed in the balance of power at all governmental levels. That is, the checks and balances built into the Constitution in order to protect against rogue and legislative action, and rogue politicians. The Congress was the chief legislation maker, House and Senate. Congressional laws were the laws of the land, not to be interpreted by the Supreme Court and to be fully protected, defended and implemented by the President. There was even check and balance between House and Senate, a certain division of powers where each body could act independently or as a check and balance on the other. The Congress had certain ultimate authority and power over the Supreme Court for if any legislation was deemed unconstitutional by these nine persons, Congress could pass new laws and move the principles forward.
More importantly, Congress and the Supreme Court were check and balance against a rogue President who, working with pen and phone, could issue Executive Orders, in many ways bypass Congress, and at least temporarily defy the Supreme Court. Scalia believed in the firm balance of federal powers, all three branches at work protecting the Constitution and the rights granted, the power, sovereignty and integrity of the states (federalism) and most importantly the rights of the citizens, WE THE PEOPLE. One can only wonder whether Justice Gorsuch believes the same. We can only hope that this principle of balance of powers, and of check and balance will be fully respected and that the decisions of the new Supreme Court consistent with the old in the day of Scalia will also decide accordingly. What awesome powers, UNBELIEVABLE POWERS this one new justice will have on the United States Supreme Court.
Gorsuch may be the closest possible Supreme Court Nominee to Scalia as there is. He has shown thinking, character and principles which are truly and consistently conservative. He seems to have followed the five judicial principles of Scalia, but in his own way. He seems a man who is cut from conservative cloth and will honor and respect our Constitution, originally, literally and in terms of its unconditional grant of rights to the American citizens, WE THE PEOPLE. Let us, my fellow Americans, hope and pray so.
The Obama Administration has run roughshod over the Constitution. Many scholars, politicians and even right-thinking academics have been concerned by Obama Executive Orders and the acts, rules and regulations of the agencies which he directs and commands. Obama has defied the Supreme Court and certainly the Congress, House and Senate time and again. Obama has negatively influenced the balance of powers, the checks and balances inherent in the Constitution, creating a Presidency overreaching, unconstitutional in many respects, acting with an utter indifference and disregard for the United States Senate and the House of Representatives. We can only hope that Gorsuch and a conservative leaning Supreme Court will reestablish respect for the Constitution, and the balance of powers, and the proper position of the President, and the duty of the Congress to act aggressively and consistently and to make certain the newly formed Supreme Court of the United States of America (SCOTUS) follows the principle of TEXTUALISM, the text of the law as written, ORIGINALISM, the time when the law was created, the RIGHT of the people to legislate, the aggressive defense of Constitutional rights and freedoms, and the BALANCE OF POWER and check and balances between the various branches of government, including and especially federalism and the rights of the states.
Time will tell. But you can be sure that Gorsuch will be confirmed, so say the Republicans. That means not a different America legally, but the return of a Supreme Court consistent with the one on which Antonin Scalia sat. We the conservatives can only hope and pray that is so.
Many think Gorsuch was the very best candidate Trump could nominate for the Supreme Court.
What do you think?