While at National Review poking around for the sappy farewells and well-wishes to its most prominent Cuckservative, I came across a little diddy about Mayor Booty-grab’s plan to remake the Supreme Court. Apparently the plan is to expand the court to 5 Dems, 5 Reps, and then five chosen by the other ten. This plan on the face of it seems to be a “silver bullet” method of removing all partisanship from the high court, but I don’t think this will have any of the desired effects that either Booty-grab or Conservatives have in mind, in that Conservatives are likely to have their own complaints about the high court.
The writer who brought this to my attention–some three name person I have never heard of–voiced concern that this would shape the Court in the image of the two political parties. That is a valid concern, but one which I think is already a reality. Since the days of Bush the Younger, the environment in Washington D.C. pertaining to the courts were shaping up to be the party in control of the White House and the Senate dictated how the courts looked. This progressed (no pun here) to control of the Senate with filibuster-proof majorities. Then finally, and the way the Constitution was designed, a simple majority of 51. In short, long are the days when you could get a significant number of votes from the opposite party. Sure, Republicans play nice, but that is out of a mentality of Stockholm Syndrome. Democrats on the other hand are never going to allow reason to overcome what the party bosses dictate, just ask Miguel Estrada.
The other problem is that the Supreme Court should not be the attention grabber that it is. I am constantly making the case to those interested that the States are the real driving force to our system of government with few defined exceptions. The issues that are at the root of this country’s division are issues that have no place being decided by the Supreme Court. There is no reason for sweeping, societal changes to come from the legal reasoning of nine people. Had the Court not assumed such a role, I doubt there would be the animosity in this country that there is. It’s the culture of the court that needs to be remade, not the form of the court. Justices need to be educated to understand the proper role of the general government and that requires a change in the ideology that is taught in law schools.
Law students in Constitutional Law classes should be reading St. George Tucker and William Rawles before ever reading a case decided by the Supreme Court, be it the Marshall Court or the Roberts Court. Knowing the proper role of the Court is what is needed and that can only come from people passing the knowledge on to the future generation of lawyers. One of the benefits I had going into law school was the knowledge that these men and other like them were out there. Having read their works, I was able to see the stitches on the fast ball when taking my classes.
If Conservatives are as truly committed to limited government as they claim, they will make the effort to ensure that their fellow citizens know of these books and the others out there. If Conservative lawyers are truly committed, they will ensure that new associates to their firms read them and know them. Changing a culture takes time and it takes changing minds. That is impossible if only half of the information is circulated.