The Next Supreme Court Justice – Part 3

The following [The Next Supreme Cout Justice]  is adapted from a speech delivered on June 30, 2016, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

Moving to the Second Amendment, the next justice will likely cast the deciding vote on whether to continue to recognize an individual right to “keep and bear Arms,” or whether to interpret that right so narrowly as to effectively do away with it. For example, just this month, the Ninth Circuit Court of Appeals in California held that the Second Amendment does not forbid laws that prohibit most people from carrying (i.e., bearing) a firearm in public. Without a justice willing to stand up for an effective right to bear arms, the Second Amendment might very well become a dead letter.

Other issues that hang in the balance include the death penalty, affirmative action, regulation of the abortion industry, and voting laws. But I want to focus on one final set of constitutional questions that have reached their tipping point in recent years—questions having to do with the structure of our Constitution.

Contrary to what many believe, the primary guarantee of our liberty in the Constitution is not the Bill of Rights. Rather it is found in the structure of government under the Constitution, which is designed to prevent accumulation of power and oppression of the people. The Constitution separates powers between the executive, legislative, and judicial branches of the federal government, and divides powers between the federal government and the states. Those who wrote the Constitution expected that members of the different branches would be zealous in defending their powers from other parts of government that attempted to encroach on them. They expected state legislatures to do likewise. These constitutional structures provide the greatest and broadest guarantee of liberty by limiting governmental power. And today they are under threat.

Since at least the New Deal, the executive branch has been accumulating more and more power, and the current administration has taken unilateral executive authority to new levels. President Obama has on numerous occasions effectively engaged in lawmaking—an activity strictly delegated to Congress by the Constitution—when Congress refused to pass laws that he desired. Last year, for example, the Environmental Protection Agency instituted a new “Clean Power Plan”—an attempt to put the coal industry out of business, in the name of combatting climate change—absent any authority granted by Congress. Oklahoma, along with 28 other states, sued to have this rule blocked. In his last act on the bench, Justice Scalia voted to put this Clean Power Plan on hold while it is being litigated, providing a good indication that five of the justices thought it to be unlawful. With Justice Scalia gone, his replacement will likely determine the outcome of this case.

Along the same lines, the EPA and the Army Corps of Engineers recently rewrote the definition of the term “Waters of the United States” in the Clean Water Act to include almost every puddle and pond in the country, enabling a vast extension of federal regulatory authority at the expense of the states and the people. Again, this occurred without any grant of authority by Congress, which passed the Clean Water Act back in 1972. Again, Oklahoma and 26 other states have challenged this power grab.

Most recently, the President and his agencies have attempted unilaterally to mandate accommodations nationwide for transgender people by rewriting laws like Title IX, which prohibits discrimination based on sex. They are attempting to do so by redefining the word “sex” in the law—understood when Title IX was passed by Congress to refer to biological sex—to mean “gender identity,” which the administration defines as a person’s “internal sense of gender.” A new justice will likely cast the deciding vote on whether courts should check this type of executive overreach as well.

Another way President Obama has expanded his power is by refusing to enforce laws he does not like, effectively repealing them. He has done this with immigration laws by designating entire classes of people as having “legal status,” even though the law clearly states that they are unlawfully present. Similarly, his administration has effectively legalized marijuana in certain states by refusing to enforce federal laws prohibiting it. The extent to which presidents must follow their constitutional mandate to “take Care that the Laws be faithfully executed” is a hotly contested issue on which the next Supreme Court justice might provide the pivotal vote.

The next Supreme Court justice will not only decide the outcome in pending cases, he or she will also influence the type of cases that make it to the Court in the first place. Businesses are less likely to challenge exorbitant or unfair rulings against them knowing there is a majority of justices hostile to their interests. Conservatives will be less likely to put their time and resources into defending the Constitution if they know the Court won’t enforce it. Meanwhile, liberal groups will be emboldened to bring cases that attempt to roll back First Amendment and Second Amendment freedoms, among others. They will also bring cases attempting to establish new “rights”—to government welfare payments, to free attorneys in civil cases, to increased funding for public schools, etc.—as well as things like a prohibition on racial disparities in criminal justice outcomes, an exception to the First Amendment for so-called “hate speech,” and a prohibition on sex-segregated restrooms.

The appointment of the next Supreme Court justice could be the most legally significant event for our country in a generation. If the next justice is in the mold of Justices Ginsburg or Sotomayor, the rulings of the Court will shift dramatically to the left. If the next justice shares the principles and philosophy of Justice Scalia, the ideologically balanced Court that we have grown accustomed to in the last quarter century will likely remain. As someone whose job it is to defend the rights of the people of Oklahoma, this turning point is very important to me. But as I hope I have explained, the next Supreme Court justice will make decisions that touch on the rights of every American and that may come to define the nature of our government and our society for many years to come.

Reprinted by permission from Imprimis, a publication of Hillsdale College.