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  • Morning Bell: The Next President and the Supreme Court

    Every vote counts. And this year, it could count double. One vote could decide both the immediate election and the course of constitutional law for decades to come.

    Just ask the senior federal officials responsible for our security immediately after 9/11 who were sued years later by Javaid Iqbal. During the investigation into the attacks, FBI officials identified Iqbal as a suspect of high interest and detained him in New York. He sued alleging that high government officials, including Attorney General John Ashcroft, personally ordered that he be discriminated against on the basis of religion, race, or national origin.

    Iqbal provided no facts in support of his conspiracy theory. When his case finally reached the Supreme Court, five justices properly, but narrowly, rejected his speculative claims that would have cleared the way for plaintiffs’ lawyers to embark on fishing expeditions in hopes of winning windfall damages from current and former federal officials. Only a single vote in the high court kept Iqbal and countless others with no proof of any wrongdoing outside their own imagination from subjecting government officials to depositions and other harassing litigation tactics. Though the chance of hitting a punitive-damages jackpot is small, the prospect of such an award would have ensured a steady flow of rapacious court challenges.

    Americans naturally consider many issues in casting their vote for President. But they should remember how important their votes will be in deciding the nation’s constitutional course. Neither presidential candidate has made his criteria for judicial nominations much of an issue during this campaign, but whom we select as President may well determine the viability of the rule of law for the foreseeable future.

    The right approach was best articulated by Ronald Reagan. As he said on the day that Chief Justice William Rehnquist and Justice Antonin Scalia were sworn in:

    [Our Founders] settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. The framers of our Constitution believed…that the judiciary they envisioned would be “the least dangerous” branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had “neither force nor will, but merely judgment.” The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported.

    Justice Felix Frankfurter put it this way: “the highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the law.”

    Sadly, too few judges today understand their proper role. Rather than exercising judgment, they impose will. This form of judicial activism substitutes personal preferences for the command of law. The rule of law is not an infinitely flexible tool that allows the bench to impose its policy choices on the citizenry. Rather, it is a defined set of boundaries derived from the text of the Constitution and accompanying statutes.

    The meaning of those texts was fixed at the time of adoption; any other approach rejects democracy for oligarchy. Words, in context, have real, binding meanings. Even if reasonable people disagree about some hard cases, judges should aim to discern and apply the original public meaning of the text at issue rather than what they want it to mean.

    In recent decades, judges have made many decisions unconstrained by the rule of law. Far too often the Supreme Court itself, by a 5-4 vote, contorts the text of the Constitution or a statute to reach a preferred policy result, substituting its own judgment for that of the legislature or the Framers.

    Consider a small sampling of recent decisions where a single, misconceived vote mattered.

    • In McCreary County v. ACLU, the 5-4 majority held that the display of the Ten Commandments in a county courthouse violated the Establishment Clause because it was supposedly not sufficiently integrated with a secular or historical message.
    • In Kelo v. City of New London, a thin majority decided that a city may take private property—including people’s homes—and give it to a big corporation, supposedly to generate more tax revenue. This decision ignored the clear constitutional requirement that property be taken only for “public use.”
    • In Massachusetts v. EPA, the Court usurped a political question from the legislative and executive branches and jumped into the middle of the global warming regulatory debate. In so doing, it overturned the Environmental Protection Agency’s reasoned decision not to regulate greenhouse gas emissions, and required the EPA to adopt a regulation.
    • And no discussion of controversial 5-4 decisions would be complete without mentioning the Court’s decision in NFIB v. Sebelius last June. There, a bare majority upheld the Patient Protection and Affordable Care Act under the guise of reading its individual mandate as a tax.

    As Americans go to the polls this month, they should ponder President Reagan’s words: “Those who sit in the Supreme Court interpret the laws of our land and truly do leave their footprints on the sands of time. Long after the policies of Presidents and Senators and Congressmen of any given era may have passed from public memory, they’ll be remembered.” Every vote does, indeed, count.

    Edwin Meese III, the former U.S. Attorney General, is the Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at The Heritage Foundation. 

    Quick Hits:

    • “More than 50 EPA staff are now crashing to finish greenhouse gas emission standards that would essentially ban all construction of new coal-fired power plants,” which could turn into a “November surprise,” reports The Washington Examiner.
    • The chairman of the House Armed Services Committee says the White House is muzzling military officials from sharing information about the Benghazi attack.
    • The New York City marathon was cancelled, but generators, food, and water that were supposed to be redirected to hurricane victims sat unused.
    • More than 1 million people in New Jersey and New York are still without power.
    • Heritage’s Hans von Spakovsky details the dangers of close elections: voter fraud and provisional ballots.
    Posted in Legal [slideshow_deploy]

    19 Responses to Morning Bell: The Next President and the Supreme Court

    1. MALCOLMx says:

      liberalism must be removed from our government at ALL LEVELS;;;;;;;;;; they serve no purpose other than to remind us of how off base a human mind can become;;;;;;;;;;;;;;if conservatives 40% identify as that control the libs 20% say they are there should never be a government controlled by them again;; of course there is one person who must be eliminated from America's business;; GEORGE SOROS………

    2. Carol,AZ says:

      Thank you for the exceedingly thought-provoking article.These exacting points of re. is what keeps up at night. I've never been more fearful for our state of our union, our Democratic process and the executive fiat that now overtly has taken over are due process.
      One case cited from New London , CT was the take over of an entire neighborhood:, the corporation Pfizer's pharmaceutical, that did a land grab that destroyed an entire neighborhood, displaced the home owners and later on, pulled out after the expansion ,laying-off hundreds of their workers .
      But haven't we seen this same process all over America redressed as progress, renamed Hope and Change?

    3. PaulE says:

      Excellent article showing the ripple effects that flow from presidential elections. Far too many people are too narrowly focused solely on meaningless issues like "likeability" of the candidate heading the ticket. They ignore or are simply oblivious to all changes that flow from choosing a liberal over a conservative. The long-term direction of the nation is literally at stake, at so many levels, in this election.

      People need to stop listening to the snake oil salesman promising unlimited free handouts, at no cost to middle class and poor, and realize they are being played for fools. Wake up America and realize what four more years of Obama will mean to cementing his policies in place for decades to come. Your personal freedoms and the everything you love about this country can be taken away in an instant if Obama can pack the Supreme Court and other other federal courts with more liberals, who feel the Constitution is merely an inconvenient roadblock to be set aside or discarded in order to enforce the "progress" they want to shove down your throats.

    4. Lloyd Scallan says:

      Can there be a better example of why Supreme Court justices must be term-limited than the last two Obama appointed? However, if Obama wins reelection, we have a hell of a lot more to worry about than court appointments.

      • KHM says:

        @Lloyd, You took the words out of my mouth. Obama's two appointees have to be some of the worst in history. Both women were selected to pander to certain constituencies. Both Kagan an Sotomayor lied under oath in the confirmation process. Kagan had clear conflict of interest in the PPACA (O'care) yet failed to recuse herself. There are several justices in their late 70s or early 80s who, if Obama is in office, would give him the capability to pack the court with extreme left globalist appointees. Ginsburg will not retire, despite her health, unless she knew that another radical would take her chair.
        Lloyd is also correct that there will be many other important issues if the usurper is able to keep the WH. Even the 75 days between election and inauguration could be crucial to our freedoms and the future.
        Pray for our country!

        • doremiflutist says:

          The reason that there are no term limits on the justices is so that they are not dependent on supporting popular opinion so that they can be reelected. If they have to worry about running for reelection, the theory goes, they won't make unpopular decisions that are correct according to the Constitution. It's apparently not working out the way the Founders intended though. Whether term limits would make the problem of judicial activism better or worse is hard to say.

    5. boberic says:

      It is simply incomprehensible to me ( and I like to consider I am at least somewhat intelligent ) how a Sumpreme Court Justice who takes an oath to protect and defend tthe constitution, can make decisions based on personal feelings. The Constitution is not a flexible document. There is a procedure within to change the document as it should be necsessary and this ammendment process has been used in the past many times. In our legal system if a laaw is deemed wrong, then change the law, ignoring it should not be aan option.

    6. Kim4Freedom says:

      To really comprehend the direction or life we may live in America, read the Constitution for the Republic of Cuba. They claim to be free and sovereign, yet are controlled by a dictator, they claim to be free yet they must teach their children socialist values, religious discrimination and limited ownership of private property. They openly embrace Marx and Lenin as their guide, and pretty much what the head chiefs say is what you get. The have free education and free healthcare, but they are in no form of the word free. So we have a constitution, 51 of them (US and States) we have clearly seen where our system of checks and balances has meld into a conglomerate of party politics and still no justice.
      I urge you desperately, to read the Ohio Sovereignty Amendment and endorse of efforts to restore justice regardless of party. Or we can heil in the next king with chains. Thank you Kim

    7. Palrak says:

      Many people, myself included, keep forgetting that a negative consequence of an Obama re-election would be to pack the court with liberal, activist Supreme Court justices. We need strict Constitutional justices which I am quite certain Romney would pick.

    8. Ronald Syren says:

      Ed Meese says it all regarding the tortured decisions that come out of our high courts. We indeed stand on shaky judicial ground as seen through this retired diesel mechanics eyes. Was it Ben Franlin who said, the Constitution will only work if the people stay informed?


      General Meese is right. We forget how bad it can become for all of us if the liberals take away the protections that are afforded us in the Constitution by their misguided rulings.
      The Kelo Case of giving private property of a widow and others to a private company for private development, gutting the Eminent Domain Clause was of particular note and of course the Obamacare tax but of course that made John Roberts the Chief Justice part of the problem and why no one knows.

      Thanks Ed Meese. You are a great man.

    10. Jeanne Stotler says:

      Upholding the Constitution is in every oath taken by an elected Congress person, president, vice presiden and Supreme Court justice. In the last 3-1/2 years we have seen this precious document twisted, split and argued about, ever which way but the right way the way it was written, amended, raified. Religions guaranteed under our 1st admendment, right to defend our homes, the right of FREE choice, all are being destroyed under Obama. What would be next after NOv. 6th if Obama wins? Power hungry Obama has more cards up his sleeve – keep alert.

    11. Linda says:

      Why on Earth is the subject of the Supreme Court just now being brought up? It should have been talked about months ago. If Obama gets even one more pick, it could be the end of our free country. Does anyone have an answer as to the wait?

    12. Guest says:

      There is another one to look at, titled: Palsgraf v. Long Island Railway 1928. That Justice, named Cordozo, should be posthumously reversed and disbarred. If there was ever any example of a personal agenda carrying on into infinity, this is it.

    13. This election could effect the supreme court for the next 30 years.

    14. Prem Bhandari says:

      Before anything meaningful can be achieved, we need to address, streamline, and resolve a few issues:
      -the writers of the Constitution were genius in foreseeing so many eventualities many years ahead of their time, but these eventualities kept on changing…
      -the English language and its interpretation was much narrower and pointed than it is today, which is primarily because people are increasingly falling out of culture thereby a new culture/lifestyle and the associated comprehension and interpretation of language is emerging. I think we are deteriorating on many levels. If culture/behavior changes, so does its communication medium. We need to find a way to standardize the interpretation of the Constitution Law, that is, if it is possible.
      -no one should be allowed to cross, even indirectly, the parameters of the Constitution Law…
      -yes, term limit should be considered in each and every case…….

    15. Blair Franconia, NH says:

      Romney will get to choose two new justices. Breyer and Ginsburg will be retiring.

    16. David says:

      I dissent. Republican presidents since Eisenhower have appointed liberal Supreme Court Justices Warren, Brennan, Stewart, Blackmun, Powell, Burger, O'Conner, Kennedy, Souter, and Roberts. Mr. Romney will be no different. His appointees will shred the constitution no less similarly than Mr. Obama's appointees. 5 of the 6 Republican appointees in Roe v. Wade voted in favor of it. I am registered in the critical swing state of Virginia. I am sitting this election out.

      • Carol,AZ says:

        What are you afraid of?
        If you live in VA you must know the critical history of Williamsburg, VA and what it stands for; and how your brethren and my own, collectively believed with absolute resolve, to honor our Republic, to formulate a working Govt, right in your own back yard.
        How could you?

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