Change the Supreme Court, Change the Constitution?

The fate of health care shouldn’t come down to 9 justices. Try 19.

Law professor Jonathan Turley writing in The Washington Post

When liberals find that the Constitution prohibits them from imposing their will on their fellow citizens, their usual reaction is not to accept that the Founders in their wisdom bequeathed us a federal government of limited powers, but to look for a way around the limit.

Thus, as liberal supporters of Obamacare have come to the realization that their plan to impose their idea of health care upon the rest of us might very well lose before the Supreme Court -- and that the individual mandate, if not the entire law, could be found to be unconstitutional -- their frustration has caused them to seek out some truly novel means of ensuring that if they lose on Obamacare, at least they will have a better chance of getting their way before future Supreme Courts.

One such scheme, authored by George Washington University law professor Jonathan Turley, was given prominent play on the front page of the Sunday, June 24 Outlook section of The Washington Post.

While Turley may be a conventional liberal on many issues, conservatives and libertarians often find much to like in his writings on civil liberties, so it is always worth giving his articles a look.

However, when Turley began his article with a review of the Supreme Court’s public opinion standing, noting that only 44 percent of citizens approved of how the court is doing its job -- and 60 percent thought that appointing Supreme Court justices for life is a “bad thing” because it “gives them too much power” -- our antenna went up.

Professor Turley posits that a larger Supreme Court would have more “wisdom” and that the present system is biased against the nomination and confirmation of a “legal virtuoso.”

We would certainly agree that the court was left poorer, and Americans perhaps less free, because conservative “legal virtuoso” Robert Bork was not confirmed. Likewise, President Bush 41’s choice of David Souter, a little known New Hampshire judge, and thus a seemingly safe choice, was in the conservative view a disaster and added a reliable vote to the Court’s liberal bloc.

Turley goes on to say, “I believe that many of the court’s problems come back to its dysfunctionally small size. This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.”

Although these countries are all more or less representative democracies, we wouldn’t necessarily look to them as paragons of civil liberties or examples of populist diffusion of government power. Quite the contrary, all of them have strong central governments.

More importantly, implicit in this argument is the assumption that a Supreme Court more in tune with public opinion would be a good thing, particularly if it was more in tune with the public opinion of the urban elite.

That’s not what the Framers of the Constitution had in mind when they wrote the Supreme Court into the new Constitution.

It seems to us that in his zeal to formulate a Supreme Court that conforms to his ideas of the will of the people, Professor Turley has missed the fundamental reason why the Framers wrote a Supreme Court into the Constitution in the first place.

Alexander Hamilton outlined the Framers’ vision of the role of the Supreme Court, and the arguments in favor of it in Federalist 78. Hamilton’s argument was that the Supreme Court was to act as an “excellent barrier to the encroachments and oppressions of the representative body.”

Contrary to Professor Turley’s assumption that the fate of health care might be affected by the number of Justices on the Supreme Court, the fate of health care really comes down to whether or not the Justices follow Hamilton’s vision of their role in the new constitutional government.

Which should remind all conservatives of one of the most important things at stake in this election: the presidential power to nominate Justices to the Supreme Court and the Senate power to confirm them.

It doesn’t matter how many judges sit on the Supreme Court. If the Justices don't see the Constitution as the law that governs government, then Obamacare, and similar examples of government overreach, will stand. If on the other hand, only judges are confirmed who view ours as a federal government of limited powers, then the Justices will act as a “barrier to the encroachments and oppressions of the representative body,” as Hamilton so ably put it, and strike them down.