A Modest Proposal for Imposing Republican Will on the Court

The Supreme Court is the most powerful legislative body in America. It is an entirely partisan institution. Let’s stop pretending otherwise. 

 With that in mind, President Trump and the Senate Republicans immediately should nominate and appoint the youngest, most conservative public figure they can find. I recommend Madison Cawthorn, the 25-year-old House candidate running for North Carolina’s 11th District. 

Unlike the currently sitting eight justices, Cawthorn is not a graduate either of Yale or Harvard Law. In fact, he doesn’t have any law degree at all. 

Even better! 

The Supreme Court no longer is a meaningful judicial institution requiring special expertise. The court doesn’t interpret law, it makes it. The people’s representatives in Congress never voted to make gay marriage legal nationwide or to allow abortion on demand. That was left to the nine aged oligarchs on the court. America, in a number of crucial ways, is a kritarchy—a regime governed by judges. 

The Republicans have 53 votes in the Senate. The principle of majority rule means they have the right, from the American people themselves, to implement their will. They should use that power to ram through their preferred nominee. 

They shouldn’t hold hearings, ask for Democrats’ input, or muse about “qualifications.” First thing Monday morning, Senate Majority Leader Mitch McConnell (R-Ky.) should hold an up or down vote. They should swear Cawthorn in by the afternoon. 

Do not stop, do not pass go, do not collect $200.

Like the Roman emperor Caligula appointing his horse as senator, the whole point of this exercise is to delegitimize our decrepit institutions. Conservatives still wringing their hands about “decency,” “norms,” and “the rule of law” simply do not understand the world in front of their eyes. 

You want to talk about rule of law? Virtually every state in America has been under medical martial law for six months. 

Norms? Neil Gorsuch didn’t bat at an eye at finding transgender rights in the Constitution. 

Decency? Democrats used an evidence-free rape accusation to try to sink Brett Kavanaugh’s nomination. 

This is about power. This is about winning. America has been in a constitutional crisis for years, if not decades. Maybe it’s time for Republicans to make it explicit. 

Of course, if Republicans had spines none of this would be necessary. Article III, Section 2, Clause 3 of the Constitution states that the Supreme Court only has “appellate Jurisdiction, both as to Law and Fact,” under “such Exceptions” and “Regulations as the Congress shall make.” In other words, the Supreme Court is not the final arbiter on the Constitution. The three branches of government are coequal in their charge to interpret the Constitution in their respective spheres.

But Congress alone has the special power to remove certain topics from the Supreme Court’s jurisdiction entirely. If Congress doesn’t want the Supreme Court to rule on abortion or gun rights, it could make it happen tomorrow.  

The current Republican establishment ignores the powers they have, and simply shrugs their shoulders at the court’s rulings. This is a sign of weakness. It is so much easier for elected representatives to sit back in D.C., collect a sweet paycheck from K Street after leaving office, and look the other way. 

Their abdication has consequences. Over the past 50 years, the American Left has used the judiciary and administrative state to impose their will without ever pretending to consult the people. And that street doesn’t run both ways, either. The Supreme Court is only allowed to act as a super-legislature so long as it embraces liberal policies. 

If a 5-4 decision came down not simply undoing Roe v. Wade, but banning abortion nationwide using the 14th Amendment, there is a snowball’s chance in Hell the Left would accept the results. Leftists would cry “state’s rights,” refuse to allow executive agents to enforce the ruling, and then use their corporate muscle to undo the decision.

The Left would let this country burn before it would allow conservatives to do to them what they’ve spent the last five decades doing to us.

Enough is enough. Americans need a say in their own government. That starts with this nomination. The Republican Party has a chance to show some fight and to impose its will. Do it. Speculating about precedent for the opposing party in the future is the talk of losers. Conservatives should act as if they will always remain in power. They should act like liberals.

Therefore, the Republican Party should immediately flex its political muscle and ensure the appointment of its president’s nominee. It’s time Republicans started acting like winners. 

About Josiah Lippincott

Josiah Lippincott is a former Marine officer and current Master's student at the Van Andel School of Statesmanship at Hillsdale College.

Photo: iStock/Getty Images

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