By IS, contributing writer
Photo from Adam Zyglis, cartoonist for Buffalo News
When asked who in the United States has the greatest amount of power—how would you answer? Surely it must be the commander in chief or the legislators of congress that pen the laws, right? Or maybe you would argue: no, Izzy, that can’t be right. Checks and balances prevent any monopolies of power, this isn’t a dictatorship. And according to your 10th-grade textbook, you would be correct. The three branches of government—Executive, Legislative, and Judicial—were created to balance one another; they were created to limit each other’s power to avoid despotism. But in my humble opinion, the judicial branch is easily one of the most powerful of all, surpassing even that of the president.
As a student in pursuit of a career in law, I’ve learned that my future job will quite literally be to interpret and manipulate pieces of the constitution, determine statutes, and cite public precedent. As scary as that sounds, it is in actuality the unwritten job description. A lawyer represents their clients before a judge in a series of courts. The judge, after a session of debate between counsels before a jury (lasting days, weeks, and sometimes months-long) will deliver a decision based on the facts, evidence, and previous precedent or landmark decisions of Supreme Court hearings. But, if I have learned anything during my time as a debater, it is that the key factors of winning an argument and convincing your moderator or judge are translation and interpretation. For example, you can make a case that redheads have no souls and deserve the death penalty for their demon-hood simply because it’s not said directly in the constitution that they do indeed have souls. If you can stand before a judge and convince him/her of this case, then you will win and there will likely be some law out in place to punish all gingers. The constitution doesn’t say that gingers specifically do have souls, so it’s up for interpretation…right? This is an insanely inhumane example—it can be implied from the First Amendment and Bill of Rights that even gingers—in all our devilishness—have the same rights as say, blondes or brunettes because we are all considered human and therefore placed within the category of concern. This is where the Supreme Court of the United States (SCOTUS) and the power of judgement truly come into play.
Did you know that it is not definitively written anywhere in the Constitution or Bill of Rights that a woman has a right to an abortion? That homosexual partners can legally join in matrimony? There was even a case in which it was questioned whether “We the People” included people of color and women or just the white, male constituents of the original intent of the legislation.
The idea that the Constitution is not a “living” document and should be interpreted in its original intent (for the people of 1787, 233 years ago) is called originalism; it is an inherently racist and sexist practice that is observed reverently by the conservative six on the Supreme Court. To not update our law as we move forward as a society is ridiculous. We are not in the 18th century anymore; I am genuinely curious as to why anyone would disagree with me when I say that originalism is absurdly idiotic. It is outdated and no amount of extremist gibberish can convince me otherwise.
The most famous disciple of this practice is Antonin Scalia, who was considered to be an intellectual anchor for originalist perspective in the court’s conservative wing.
In wake of his passing in 2016, we were met with incredible controversy. At the time, we were under the Obama Administration, a democratic presidency. Now, being a Supreme Justice is a literal, lifetime job. The only way someone can replace you once you are confirmed to your position is if a.) you die, or b.) you retire. In some extreme cases, justices can also be impeached, but it is extremely rare and has only actually occurred once. So when a justice passes, it is up to the current president (as written in Article II, Section II, Clause II of the Constitution). With this understanding, it was up to Obama to select a new Justice.
However, given that it was an election year and Republicans held control of the House and Senate, Obama was blocked from nominating a Justice. This is because we were “so close” (237 days—keep that number in mind) to a new term and thus, a new president, so it was unconstitutional for a President who was on his way out to have that selection. So, because of a republican block in congress, when Donald Trump was elected, he received the honor of nominating and replacing Scalia with the wonderful Brett Kavanaugh (I hope you tasted the sarcasm).
Now here we are in 2020 and gosh darn it—I’m having a major episode of horrifying Deja Vu…
In wake of Ruth Bader Ginsburg’s passing—a very prominent member of the court’s liberal wing—Donald Trump was allowed to name a new justice, just eight days before the most controversial and desperate election of all time. To the despair of many, the Republican majority senate deemed this completely constitutional (my GOD, the hypocrisy). Amy Coney Barrett (ACB) was confirmed to the Supreme Court 23 hours before Donald Trump (DT) was named the loser of the 2020 Presidential Election. 23 hours.
I am amazed, reader, at not only the absolute hypocrisy but the blatant violation of precedent by the Republican Party. I am stunned at the power of government officials, to manipulate the law to their benefit.
But here is what really troubles me. Many conservatives are flagrant supporters of originalism, but in cases that don’t benefit them, I guess Republicans just suddenly forget how to read!
It is vehemently mentioned within the powers of the president that “he shall have the power, by and with the consent of the senate to nominate ambassadors, officials, and judges to the Supreme Court.” With their refusal to acknowledge Obama’s nomination of Merrick Garland eight months before the election, they were already utilizing their majority to challenge not only the Constitutional Right of the president but also to dismantle democracy. You can’t back originalism and go for this…. are you incapable of even following your own rules?
Then they had to go ahead and completely reverse their previous precedent and allow DT to nominate and pack the courts eight DAYS before the American people kicked his butt to the curb. EIGHT DAYS.
I am disgusted and, frankly, kind of terrified to find out just how much power I can summon with a Juris doctorate and (hopefully) eventual judgeship. I know that I claim to be a moderate, but it’s situations like these that shove me aggressively to the liberal side.
ACB is rumored to have a mind for excavating all sorts of human rights established in landmark cases— and it is highly probable that we as a nation will be revisiting some liberal-won cases soon because of her originalist and textual approach. I have zero respect for the women who can’t even identify all six rights of the first amendment, and I am terrified for all women and members of the LGBTQ+ society. Our rights are very much at risk with a person like this in such a position of power. Her presence in a now six to three conservative court is hypocritical, dangerous, and frankly, irritating. Let us hope and pray that she doesn’t revisit Roe v Wade or Orvegevell v Hodges (the court hearings that ratified term-specific abortion and gay marriage), because in the words of her dissenting “role model” Scalia and Chief Justice Roberts: “Do not celebrate the constitution (for the legalization of gay marriage), it had nothing to do with it,” and “it’s not what was intended by the founding fathers.”
