SCOTUS is a Legislating Body

Vahe H Apelian

 

The pictures courtesy NY Times.

The debate whether the SCOTUS interprets the Constitution or legislates has long subsided. The consensus that seems to have emerged is that the very interpretation of the Constitution is legislation. Consequently, we have seemed to have resigned or accepted it that the SCOTUS is a panel of 9 persons, educated in law who wear a black gown and  during the State of the Union, sit with a solemn face, do not clap to the president’s address and try to impart an image that they stand above partisan politics, when in fact it was the partisan politics that brought that to that exalted position.

The headlines of NY Times today were very much telling of the SCOTUS’s legislation.

The two headlines were the following

 The first headline heralded the following: A Rebuke to Trump Provides a Telling Portrait of a Divided Supreme Court.

The first sentence of the report summed the state of the SCOTUS. It read: “Two Republican appointees, Chief Justice Roberts and Justice Barrett, joined the court’s three liberals in ordering the president-elect to face sentencing on Friday.” That short sentence acknowledged that the appointees of the Supreme Court are judged by their inclination for narrow or more liberal interpretation of the Constitution and their decision has political implication and reflects the political divide of the country, whether they clapped at the State of the Union address or not. 

The appointment of the justices is political more than anything else. No wonder, President Obama was denied to appoint a justice when a vacant seat came about with the death of Antonin Scalia in February 2016, at the beginning of the presidential election year. The Republican majority in the Senate made it their stated policy to refuse to consider any nominee to the Supreme Court, arguing that the next president should be the one to appoint Scalia's replacement. in the SCOTUS. That seat ended up being filled during Republican Trump administration.

Less than two weeks after taking office, on January 31, 2017, Trump nominated Neil Gorsuch to fill Scalia’s former seat on the Supreme Court. The Senate, where Republicans maintained a majority after the 2016 election, confirmed Gorsuch less than three months later, on April 7, 2017.

Whether the president elect Trump should have faced justice should not be a cause for a divided SCOTUS. Why should the president elect, a citizen nonetheless, facing justice be a reason for division in the SCOTUS if not for political consideration? Presently the nine justices are sliced with a clean cut in two camps, six Republican leaning Justices and three Democratic leaning justices. 

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The other headline heralded the following: Justices seem Poised to Allow U.S. Tik Tok Ban. The Case Highlights Clash of National Security Concerns and Free Speech.

Tik Tok ban, in my view, is a security issue. SCOTUS should not be the body that rules whether Tik Tok should be banned or not. Of course it is a matter of free speech. The elected officials expressed their opinions without fear and concern for repercussion and for theirs safety and security, to galvanize the nation on an important ruling, whether to ban Tik Tok or not. 

I do not think that founding fathers had the speech of the Chinese in mind when they framed free speech in the U.S. Constitution. 

Imagine that some experts believe it is possible that Apple and Google could decide to not comply with the law, betting that President-elect Donald J. Trump, who has come out in support of TikTok, would direct his attorney general not to enforce it.

Let us face it folks, we are transition from a Republic to an emperorship by the new age meritocrats who have amassed hitherto unbelievable wealth and buy for themselves unbelievable power. Next to the SCOTUS, these select group of few individuals legislate the course of our lives.