Thread: There are no “conservatives” or “liberals” on our Supreme Court!

It is puzzling why almost every commentary on the passing of Justice Antonin Scalia contains a “conservative” label attached to his name.

For example see What does Antonin Scalia’s death mean for Supreme Court, US politics?

”With the death of Justice Antonin Scalia, the Supreme Court has lost one of the most influential judicial voices of the late 20th century, and also one of its most colorful, a writer who studded his opinions with such idiosyncratic phrases as “argle-bargle” and “jiggery-pokery.”

Without Scalia’s distinctive conservative weight, the balance of power on the court has already shifted left, with several of this term’s highest-profile cases now likely to turn in a new direction.”


It seems to me that identifying a member of our Supreme Court as a “conservative” or “liberal” is intentionally designed to avoid an accurate portrayal of a Supreme Court Justice. If we look to our Constitution it declares in crystal clear language that our Supreme Court Justices are bound by an oath or Affirmation “to support this Constitution.” So, we can immediately classify a Justice as one who supports and defends “this Constitution”, or is one who uses their office of public trust to pretend the Constitution means what the Justice thinks or wants it to mean.

In the latter case a Justice’s written opinion will not be in harmony with the legislative intent of our Constitution as expressed during its framing and ratification process. And it will actually defy what the people have agreed to when adopting the Constitution or its various amendments. The Justice’s written opinion will more than likely exhibit a lengthy rational in defense his/her findings, but the finding will be based upon his/her own sense of justice, fairness, or reasonableness, and not the provisions of the Constitution as they were understood during its framing and ratification process.


This of course defeats the very purpose of the American People having a written Constitution, and especially so when our written Constitution provides a specific process, Article V, to alter the Constitution it if such alterations are found necessary by the people!


To give an example of a Justice who intentionally ignored our written Constitution and took it upon himself to supplant his personal sense of reasonableness as being within the meaning of our Constitution let us look at the Kelo Decision.


Justice Stevens in delivering the opinion of the Court writes:


“… while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose.”


The irrefutable fact is, the people did not erode the meaning of “public use” via an appropriate constitutional amendment process which is the only lawful way to change the meaning of words in a Constitution. Justice Stevens took it upon himself to do for the people what they did not willingly and knowingly do for themselves with a constitutional amendment as required by our Constitution, and, he brazenly appealed to the “evolving needs of society” to justify his own “broader and more natural interpretation” of “public use”.


On the other hand, Justice Thomas, in his dissenting opinion, observes the rules of constitutional law and carefully documents the meaning of the words “public use” as they were understood during the time the constitution was adopted. He then concludes:


”
The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.”


And what is the fundamental rule regarding the meaning of words and phrases in our Constitution?


“Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption… (my emphasis), see: 16 Am Jur 2d Constitutional law, Meaning of Language


The bottom line is, there are no “conservatives” or “liberals” on our Supreme Court! There are members on the Supreme Court who support, defend and expound upon the meaning of our Constitution as it was understood during its framing and ratification process. And, there are those on our Supreme Court who use their office of public trust to supplant their personal sense of justice, fairness or reasonableness as the rule of law, and this defeats the very purpose of having a written Constitution adopted by We the People of the United States.


JWK


"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

A note from Justice Antonin Scalia:



JWK

Our Supreme Court Justices are not vested with an authority to alter what the people have agreed to in their written Constitution. To assume they do have such power is to assume, ”the servant is above his master; that the representatives of the people are superior to the people themselves”.___ quoting Hamilton in Federalist No78.