Justices, not politicians

Marvin Olasky’s interview with Kelly Shackelford, president of the legal firm First Liberty Institute, appears in the June 8 issue of WORLD Magazine. Here are additional excerpts from their conversation about religious liberty cases and the U.S. Supreme Court.

Since the ideological tension around the Supreme Court is high, some people hope the justices will carve out some “middle ground.” What do you think? The court’s job is to follow the law. Five justices now have a judicial philosophy: Follow the written word of the Constitution. It’s not a living, breathing document that they can change in a way that they are comfortable with. They should follow the law.

They are justices, not politicians. They should be.

If we occasionally see reports of Chief Justice John Roberts and perhaps Justice Brett Kavanaugh siding with court liberals on some particular issue, should we avoid feeling like Red Sox fans in the 20thcentury who faced hard losses and grew pessimistic? You seem optimistic, like a 21st-century Red Sox fan with four World Series victories. I am very optimistic. I don’t think Chief Justice Roberts will violate his judicial philosophy. He will try to be careful to protect the image of the court, but you are going to find Roberts, Kavanaugh, Gorsuch, Thomas, and Alito all following the written word of the statute or the Constitution: originalism.

If they get control of the White House, some Democrats want to add justices to the court above the current nine. Obviously, a move to dilute the power of conservative justices is underfoot. Thoughts on that? That’s a horrible idea. So many drastic things would have to happen that I don’t think it’s likely, but if it did you’d start a ratchet: Republicans on their next turn would add more seats, and you’re totally politicizing and ruining the court.

When Franklin Roosevelt even with a Democratic supermajority in 1937 tried doing that, it turned into a huge political blunder for him. It would be a bad political blunder now. You hear a lot of crazy stuff these days, like get rid of the Electoral College, a system that doesn’t allow a few cities like New York and Los Angeles to control the country.

Without the Electoral College, wouldn’t the opportunity for corruption—stuffing the ballot box in a few places—be enormous? If you had to look at voting fraud, you wouldn’t just open up one state in a tight election: It would be the entire country.