In 2016 President Obama nominated Judge Merrick Garland to fill the vacancy left on the Supreme Court by the death of Justice Antonin Scalia. Controversy ensued, but not, I believe, on the relevant issues.
As chief judge of the United States Court of Appeals for the District of Columbia, Garland’s credentials are first-rate. But that’s not enough for a seat on the Supreme Court. As a Circuit judge, he had to follow Supreme Court precedent. But to be vetted for a seat on what is, let’s face it, our highest legislative body, his judicial philosophy needs to be examined.
If he ever has a hearing in the Senate, he should be asked, if you were put on the Supreme Court, how many impossible things would you believe before breakfast? Here are some examples.
Would you believe that the word “necessary” in the Necessary and Proper clause means merely whatever Congress finds “convenient,” as arch-nationalists Hamilton and Marshall said, although all dictionaries from the 18th Century onwards have said, that “necessary” means indispensable?
Would you believe that the Constitution’s 18 enumerated powers actually grant unlimited powers to the federal government?
Would you believe in applying the Butterfly Effect principle to constitutional law, so that small, indirect effects that have a theoretically cumulative and substantial, although still indirect, effect on the exercise of federal powers can be regulated by Congress? Would you apply that theory only to the Interstate Commerce Power or to every other enumerated power?
Would you believe that the “intelligible principle” doctrine of delegation of legislative powers to the Executive Branch has resulted in any predictable standards for executive agency rulemaking?
Would you believe that a presidential agreement with foreign governments, not ratified by the Senate, can actually have the force and effect of law in this country and preempt state laws?
Would you believe that Congress is spending for the “general welfare,” when it appropriates money to projects in a single state or in a single congressional district or to subsidize a particular industry?
If he answers all in the affirmative, congratulations would be in order. He has believed six impossible things before breakfast. He should be promoted from pawn to Red Queen. These impossible things, of course, are dogma in the Supreme Court.
If he replied in the negative to these questions, the big remaining question would be, “what about stare decisis?” Are you going to protect the institution of the Supreme Court or denounce your predecessors as fools and knaves? The right answer would be that the Constitution is more important than the Court itself, but the remedies that would follow a change of doctrine would have to be gradually implemented, in the absence of an electoral tsunami.