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Highest courts are really about political power, not the law

Democrats and Republicans in the Senate did what they had to do last week with President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court. Republicans had to force Gorsuch through, even at the cost of repealing the Senate’s rule favoring bipartisanship with important presidential nominations, and Democrats had to oppose him, though he was well qualified. 

It was a fight to the death because the Supreme Court has been evenly divided politically since the death of Justice Antonin Scalia and because the court, the other federal appellate courts, and many state supreme courts have become super-legislatures as government has grown and as the political parties, with much encouragement from society, have sought to constitutionalize all major political issues, thereby pre-empting ordinary legislation.

So when they testify to the Senate, Democratic nominees for the Supreme Court pretend not to have any opinion on major pending controversies, and, once appointed, reliably vote the liberal line, just as Republican nominees, most recently Gorsuch, also say nothing meaningful and, once appointed, reliably vote the conservative line.

Liberal Democrats started this trend, first enlarging the government and then encouraging the court’s ambition to control it. Conservative Republicans merely followed that lead. Now there may not be much left to do but start electing federal judges, as some states elect their judges. The partisan politics is often ugly and scary but at least it is more honest.

Not all is lost for liberals. Despite the conservative triumph with Gorsuch, many state supreme courts will remain bastions of liberal power, particularly Connecticut’s, which, for example, in recent years has ruled that capital punishment is unconstitutional, though specifically authorized by both state and federal constitutions, and that the state constitution actually requires same-sex marriage, though the state criminalized homosexuality long before and long after all the constitution’s relevant provisions were adopted.

Constitutions were meant not just to establish governments but to limit them, since unlimited government needs no constitution. Over the centuries since Magna Carta, limiting government was considered the better part of Western political genius. But power isn’t limited when courts take it for themselves, even at the encouragement of the president and Congress.

 

Attack was an act of a tyrant

What gave President Trump the authority to attack Syria last week? There was no declaration of war or other resolution by Congress, and no attack on the United States requiring immediate defeat and deterrence.

No, the president just saw an opportunity to look tough after an inaugural two months of buffoonery and incompetence and to impress the visiting Chinese premier with an implicit threat to China’s increasingly troublesome ally, North Korea.

The president’s pretext was another poison gas attack on civilians in Syria’s civil war, an attack he laid to the regime of the Syrian dictator, Bashar Hassad. But nobody really knows who is responsible for what in Syria anymore, and even if the Assad regime is guilty of the latest atrocity, the civil war is not the particular responsibility of the United States, especially when more intervention risks confrontation with the regime’s longtime sponsor, Russia.

Lobbing some cruise missiles into an air base in Syria from a safe distance in the Mediterranean isn’t going to stop the war. While international negotiations haven’t ended the war either, they stand a better chance. 

In any case, since there was no attack on this country, taking the United States into war without authorization from Congress was the act of a tyrant, no matter how odious the target.

Chris Powell is managing editor of the Journal Inquirer in Manchester.