The constitution was not written for the Supreme Court to matter.
Not only noted by the length of Article III of the constitution and the culture around the Judiciary in 1787 the Supreme Court was never supposed to be as powerful as it currently is. In a real and terrifying way the executive and legislative branch seems to use the Supreme Court the way the amendment system was originally designed.
But how does this relate to the confirmation of Brett Kavanaugh for Supreme Court?
To answer that question let me discuss what I meant by the italic sentence. Due to the court case Marbury v. Madison allowing judicial review the Supreme Court has the power to passively legislate by striking down legislation. In essence as you probably already know, the Supreme Court decides whether one law is constitutional. Now if this only affected the one law they spoke directly too then the Supreme Court would be largely powerless and would have to hear significantly more cases to flex any control on American politics. But due to the power of precedent setting, all courts below the supreme court have to (or at least are supposed to) follow not just the exact wording, but the intent behind the supreme court’s power. More on this another time.
What I really mean by the italic sentence though is: rather than the legislative and executive branch using their constitutionally given rights and bipartisanism to create constitutional amendments, thus rendering all conflicting legislation void, it is easier to wait until the political hammer to swings towards one political party and then put in place and pack the courts with extreme supreme court justices who will make statements that set a precedent to make all conflicting legislation void.
I want to reiterate:
Rather than adding to the constitution via 67% of House and Senate, Congress and the President would rather alter constitutional rights via 51% of the Senate.
Now as I stated in my introduction, I have an aptitude for the idea of constant improvement. The supreme court should not be subject to extremist ideals and the supreme court should rarely, if ever contradict itself. I propose a constitutional amendment that would state:
“A Judge nominated by the President for the Supreme Court shall require confirmation by two thirds of present Senators”
Overall, this would encourage and require bipartisanism, drive a supreme court that properly reflects the will of the super-majority of the people, and creates a more neutral supreme court.
This is the most important time in the country for this because we have had the same number of simple-nonsuper majority (between 51% and 66%) confirmations in the last 22 year that we have had in the rest of the 202 years of the United States, this can be noted in the final figure. Given this Supreme Court Justice Brett Kavanaugh should not be a justice he is a mechanism by which to alter the constitutional law without changing the constitution.
As always please let me know via the contact button your opinions, I like hearing all productive sides such that I can improve upon my own opinions.
-Max, of 5th Branch
5th Branch 