Supreme Court Choice Should Not Be About Sex, Brands or Politics, by Mychal Massie

With Supreme Court Justice Sandra Day O’Connor’s retirement, the media and organizations of every faith, political orientation, sexual persuasion, and profession are suggesting replacements based on what they deem best for our country.

What some say is best for America is usually not. What is best for America is that which upholds our Constitution. America encompasses the whole, while the “good of the country” oftentimes depends on the myopic, egocentric agenda of a few.

Justice O’Connor’s replacement should not be selected because the nominee is male, female, black, white, Hispanic or some other race.  Likewise, under no circumstances should someone be selected for being a Democrat or Republican.  Justice O’Connor’s replacement should be an originalist who understands the job’s singular function is upholding the U.S. Constitution, not rewriting it. This person should understand the High Court has a specific job that is well defined and narrow in focus.

The Framers created a federal government restrained by those powers absolutely necessary to fulfill a limited role. All other powers are supposed to be vested with the states.  There is also a unique system of checks and balances divided among the executive, legislative, and judicial branches.

As Vince Hazen and Paul Terrill point out in their book, The Renewal of Federalization, it was the will and intent of the Framers that “all political power rested with the people.”  Such was James Madison’s reasoning when he wrote in Federalist No. 45: “The powers delegated by the proposed constitution to the Federal Government are few and defined. Those which are to remain in the State Government are numerous and indefinite.”

This was largely undone by President Franklin Delano Roosevelt’s Depression-era New Deal agenda.  Hazen and Terrill write:

Roosevelt unleashed a flood of legislation creating expansive federal programs purportedly to curb the effects of the Depression.  These New Deal programs dramatically increased the size and scope of the federal government above and beyond its historic – and constitutionally mandated – role.

To gain support for these clearly unconstitutional programs, Roosevelt exploited developing class divisions, formed close alliances with organized labor, and increasingly castigated the big-business groups that opposed his New Deal programs.

At first, the Supreme Court resisted the President’s agenda, along with Roosevelt’s attempt to “pack” the Court with additional Roosevelt-minded jurists.  In the end, with the defection of Justice Owen Roberts and other factors, virtually all of the New Deal reforms were codified into the fabric of America.

This abrogation of our Constitution from its stated purpose is the singular reason the manic hordes have taken to the streets well in advance of a nominee even being named.

Those acolytes of Roosevelt who would subvert and further undermine our Constitution and the will of its Framers are the offspring of Charles Evans Hughes, chief justice of the Supreme Court between 1930 and 1941, who uttered the words: “We are under the Constitution, but the Constitution is what the judges say it is.”

Over time, justices of this mindset have come to find a right to privacy in the Constitution where none exists. The Fifth Amendment’s protection of private property has been virtually cast aside to give government the right to seize the private property for the financial benefit of the elite and influential.  Articles of faith are being driven from public view and symbols of national pride targets for scorn.  The Court is becoming a place for those unable to achieve their goals legislatively to exert their power over the citizenry.

That is why it is important not to rely on labels and identities.  Party affiliation means nothing – it is all about philosophy.  Of the current justices, including O’Connor, only two were appointed by a Democrat president.  Yet the Court leans toward liberal judicial activism.

Substance must take priority over brand identification. A justice should not benefit the extremism of a few.  The President must appoint a justice who will benefit all Americans as the Framers intended.  We must insist on one who has the temperament and requisite constitutional learnedness and understanding the Framers foresaw.


Mychal massieis a member of the black leadership network Project 21. Comments may be sent to [email protected].

Published by The National Center for Public Policy Research. Reprints permitted provided source is credited. New Visions Commentaries reflect the views of their author, and not necessarily those of Project 21.

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