A confirmation of Justice Brett Kavanaugh, because he may have once opposed Roe V. Wade on abortion, is not likely to be as threatening as portrayed by the media.
In the first place justices are only allowed to choose from what is brought before them, cases having survived tedious, time-consuming and expensive lower court scrutiny. So if Justice Kavanaugh wanted to reverse Roe V. Wade he would have to wait for a case that would allow that. Theoretically that could take a lifetime—if at all.
Should Congress pass a law that all nine justices personally believed to be unconstitutional they possess no power collectively or individually to themselves bring it before the high court for review. There exists in the Constitution no judicial general review or oversight of the legislative branch; only in laws contested by a litigant proving damaged by it, or treaties. The Constitutional Convention nixed this notion because it would give the court too much power. Nor were they allowed an advisory position with respect to legal issues, each branch could do this for itself. They were to be an independent branch existing solely to adjudicate cases brought to the court by others.
Should no one oppose a law or treaty outside the Constitution because opposition to it is too expensive, time-consuming, and tedious it becomes constitutional by default becoming, in time, the bases for additional law that should be equally unconstitutional. Still, it remains a lesser problem than had the court oversight of all legislation.
In the second place justices are limited to just nine classes of cases in which they can adjudicate, as was the Legislative Branch to just 18 areas where they were empowered to write law (Article I, Section 8), and the Executive branch to just eleven listed areas of performance (Article II, Sections 2-3). Remember the purpose of the Constitution was to limit government from ruling everybody and everything.
Article III, Section 2 begins: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” The Supreme Court is limited to nine case types. These are: “- to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – [between a State and Citizens of another State;-] between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, [and between a State, or the Citizens thereof;- and foreign States, Citizens or Subjects.]” Constitutionally every case before the Court had to first meet one of these or the Court must decline adjudication.
Why the list of case types? Should not the Supreme Court adjudicate everything? Because they could adjudicate only conflicts in federal law and treaties as decided in the Constitutional Convention and as per congress’s list of areas for approved law (Art. I, Sec. 8). Because when the Constitution was created two co-equal existing governments were recognized called federalism with the states governing domestic and the federal branch governing national and foreign. Because state courts were to adjudicate everything else not listed as federal power in the Constitution and as noted in Amendment 10.
Then the Founders divided this list into original and appellate jurisdictions—one total the other only partial. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Why? Because the first deals entirely with matters of foreign consequence and the second, the state, is the head of the other co-equal governments under federalism.
The Constitution continues, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Now Congress is in charge and clearly can participate should it choose to. “You may not take up this case at this time’” or “you may do so given the following regulations.” This is an essential part of the “check and balances” of the Constitution which has unfortunately never been used.
Unfortunate is Congress’s failure to provide this balance, worse is the failure of many justices to pay any attention to the list provided, which has been the case for most of the past century. Far worse is the tendency of so many justices to just make up an interpretation based on no law.
Supreme Court Justice Clarence Thomas said. “Let me put it this way; there are really only two ways to interpret the Constitution—try to discern as best we can what the framers intended, or make it up.” On making it up, he added: “No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.”(Wall Street Journal Opinion, Oct. 20, 2008).
Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.