My old boss, U.S. Rep. Steve King, R-Iowa, one of the few non-lawyers on the House Judiciary Committee, used to tell me about how Congress has the power to regulate the federal courts.
"Constitutionally, we could reduce the Supreme Court to the Chief Justice sitting in his chambers at a card table if we wanted to," he would say.
I thought of that unused congressional authority as I pondered why it is that the Supreme Court tends to pull its members to the left.
In recent decades, from Abe Fortas and Thurgood Marshall, appointed by Lyndon Johnson in the 1960s, to Clinton appointees Stephen Breyer and Ruth Bader Ginsburg in the 1990s, liberal Democrats are rarely disappointed in the left-wing positions of their appointees on virtually every issue. Not so with justices appointed by Republican presidents.
Certainly there are reliable minds on the court that can be trusted with the strict interpretation of the constitution. Antonin Scalia and Clarence Thomas have proven themselves worthy of our respect in that regard. Similarly, Chief Justice John Roberts and Associate Justice Samuel Alito are slowly building a reputation for eschewing judicial activism and for defending the concept of original intent.
But Republican nominees frequently fail to live up to the hopes of those who believe in strict adherence to the Founders' constitutional intentions.
In modern times, perhaps the biggest disappointments began with former California Governor Earl Warren, a Republican appointed by President Dwight Eisenhower to serve as Chief Justice.
Richard Nixon's appointments of Warren Burger and Harry Blackmun were a disaster. Both men voted in the majority on the most infamous Supreme Court ruling of the 20th Century, 1973's Roe vs. Wade, with Blackmun writing the majority opinion. The result is forty million Americans aborted.
David Souter, appointed by President George H. W. Bush, has so abandoned any semblance of conservative jurisprudence that he is now counted consistently with Ginsburg, Breyer and John Paul Stevens on the left end of the court.
Two Reagan appointees, Sandra Day O'Connor and Anthony Kennedy, turned into two of the biggest disappointments of the era. O'Connor's left turn culminated two important recent cases, Carhart vs. Stenberg and Lawrence vs. Texas. The Carhart case struck down Nebraska's ban on partial birth abortion. Lawrence created a constitutional right to sodomy, thereby throwing the door open wide for the movement to legalize same-sex marriage.
With O'Connor now retired, Kennedy is widely considered to be the court's "swing vote." But increasingly, Kennedy's decisions are viewed as activist liberal votes. He wrote the majority opinion in the aforementioned Lawrence vs. Texas sodomy case. He voted with the liberal majority in the outrageous ruling of Kelo vs. City of New London, in which the Connecticut town was allowed to use eminent domain laws to seize property from one private owner and hand it over to another simply because the new owner could pay more in property taxes.
In two of his most recent votes, Kennedy sided with the leftists on the court in Boumediene vs. Bush and Kennedy vs. Louisiana. In Boumediene, the court granted habeas corpus rights to prisoners captured on foreign battlefields, thereby potentially extending the protections of the U.S. Constitution to every human being on earth.
In the Louisiana case, a defendant, Patrick O. Kennedy, was convicted of raping an eight-year-old girl. Louisiana law permits a sentence of death for such a crime, and the assailant was so sentenced. But in a 5-4 decision, the U.S. Supreme Court ruled that such a sentence constituted "cruel and unusual punishment."
Anthony Kennedy and Sandra Day O'Connor are both extremely enamored with foreign law. This is a problem Congress should address. Kennedy spends his summers in Salzburg, Austria, teaching international law at the University of Salzburg. He attends a yearly international judges' conference there.
Why should international law have any bearing on decisions supposedly based on the U.S. Constitution? Perhaps this type of activity should be curtailed or banned by Congress. Perhaps the size of the court should be reduced. Perhaps John Roberts reading briefs at a card table in his chambers isn't such a bad idea.