It should not surprise us that Supreme Court nominations have become political battle royals, with tension heightened to the point that senators will break long-established norms and activists will threaten violence to try to influence the outcome.
After all, in placing judges on the Supreme Court, it is as if we are selecting a pantheon of appointed gods who wield the power to overrule the elected Congress, the president, and even the supposedly sovereign states. And because they have lifetime appointments, our only hope for the twilight of these gods is their death, retirement or incapacity.
I'm certainly engaging in some hyperbole here, but ask yourself: Knowing what you know about the founding of the United States, or what you recall from high school civics, what are the odds that the Founders, afraid of government tyranny and conscious of the perils of human nature, would have created a system where nine appointed judges have nearly unchecked power to overrule Congress, the president, and the states? Does that sound like something Madison or Jefferson would have designed?
No, of course not. Because they didn't.
In the constitutional design, there are three co-equal branches of government. Why, then, do we operate as if the judicial branch is supreme over the other two, and supreme over the states?
The reason is the doctrine of judicial supremacy, found nowhere in the Constitution or Federalist Papers, which was simply asserted by the Supreme Court in 1955. How convenient of one of the co-equal branches to declare itself superior! And how lame of the other branches to have demurred.
In the system designed by the Founders, social change would come slowly through a consensus of the states, Congress and the courts. Not fast enough for some factions, of course, but that was a feature, not a bug. But under judicial supremacy, the courts have forced social changes on the country in many cases before the country was ready for it. In other cases the court has ignored federalism and forced one-size-fits-all policies upon the states.
The progressive left has embraced the expansion of the court's power because it has often forced their preferred social changes upon the country. Think desegregation, or gay marriage, or Roe vs. Wade, or taking prayer out of schools. But what about when the shoe is on the other foot? Citizens United? Bush vs. Gore? Oh, and by the way, the shoe is now firmly on the other foot.
But as someone who happens to like a conservative court, I too am troubled by its aggregation of power.
The issue of "who shall rule?" is the basic issue of politics. In the past it was the strongman, or a king asserting a supposed divine right.
The Founders' answer to "who shall rule?" was "no one." There won't be rule at all. It was not the American ideal to replace divine right of kings with divine right of courts, or rule by the coastal elites or rule by technocrats. Rule by the smart and sophisticated is still rule, and that's not American.
The whole design was to ensure that no one faction could gain control of the government apparatus and have its way. It was a unique design to preserve liberty.
Today, we have departed from that design, and now, whoever can gain control over the apparatus of the Supreme Court can rule over everyone else.
That's far from the American ideal, and it's why so much of our political life today tastes like someone poisoned the water. Americans become embittered in the wake of being ruled.
The solution, in my mind, is to take the Supreme Court down a notch through the states, Congress and the executive branch reasserting their co-equal obligations to interpret and apply the Constitution. What some might describe as a constitutional crisis would actually be the system working as designed by the Founders, before the judicial branch declared itself supreme.
Tom Giovanetti is president of the Institute for Policy Innovation in Irving. The institute will host Arizona Supreme Court Justice Clint Bolick to Dallas on Monday. Tickets are still available at IPI.org. He wrote this column for The Dallas Morning News. Website: ipi.org