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HAMMER: Leftists, Why Don’t We ALL Agree To End Judicial Supremacy In America?

By  Josh Hammer
Ruth Bader Ginsburg
Alex Wong/Getty Images

As The Daily Wire reported earlier today, it has now been revealed that infamous leftist U.S. Supreme Court Justice Ruth Bader Ginsburg recently completed a three-week radiation treatment for pancreatic cancer. Overall, this is now the fourth time that Ginsburg has faced a bout of cancer.

Partisan reactions — especially those from the Left — to the latest news surrounding Ginsburg’s frail health have dominated much of Friday’s Twitter cycle. Consider this remarkable tweet from incorrigible hack Ian Millhiser of ThinkProgress:

Millhiser, who has never seen an act of Trumpian presidential flatulence that he has failed to excoriate as institutional or procedural norm-undermining, now seems content to egg on blue state secession in the event of a Ginsburg retirement or death during Donald Trump’s presidency. What is sad is that, as a purely predictive manner in terms of what we might reasonably expect, Millhiser is likely not too terribly far off. During the nomination fight for Neil Gorsuch, the pro-criminal defendant libertarian who replaced conservative jurisprudential icon Antonin Scalia, large swaths of the Left engaged in a full-on meltdown. During the nomination fight for Brett Kavanaugh, the lifelong inside-the-Beltway Republican establishmentarian who replaced the mercurial homosexual rights champion Anthony Kennedy, the Left threw out four to five thousand years of civilizational norms pertaining to due process and “innocent until proven guilty.”

There does not appear to be any logical limiting principle as to the shenanigans the Left might engage in were decades-long feminist icon Ruth Bader Ginsburg to retire or pass away during the joint reign of President Trump and a Republican-controlled Senate. There likely would be looting, rioting, and all sorts of Portland, Oregon-style Antifa violence. The reactions today from those like Millhiser all but forebode it.

But now would be a good time to issue a friendly reminder that none of this is how it is supposed to be. The black-robed oracles of the U.S. Supreme Court — those hapless denizens of what Alexander Hamilton called the “least dangerous” branch — are simply not supposed to matter this much in our day-to-day lives. Judicial supremacy — the notion that the judicial branch’s adjudications are to be recognized not merely as idiosyncratic legal judgments applied to named litigants to a lawsuit, but as broader and binding political principles applied to the entire republic — is a bald-faced lie. Judicial supremacy, as Abraham Lincoln recognized in his magisterial First Inaugural Address, ultimately saps “We the People” of the very self-governing sovereignty of which the Constitution’s Preamble speaks: “[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Properly construed, the “judicial power” of which Article III of the Constitution speaks does not permit unelected judges to “overturn,” “invalidate,” or “strike down” laws. On the contrary, the judiciary can merely issue an injunction against enforcement of a federal or state statute as that statute applies to a named party to a lawsuit — and even that enforcement decision independently depends upon the federal or (underlying) state executive branch. As Alexander Hamilton famously says in The Federalist No. 78: “[The judiciary] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Emphasis added.)

Against that backdrop, it lamentably speaks to just how far our constitutional order has strayed that a leftist partisan like Millhiser would suggest secession as a readily predictable result of Trump getting to replace Ginsburg. Yet it also brings to mind the possibility of a true grand bargain of all grand bargains.

Leftists, how about we all agree to once and for all ditch the judicial supremacist paradigm that has wreaked so much havoc upon our republic since 1958? Let’s all agree to make separation of powers great again and restore the judicial branch to its properly modest role. In that case, it simply will not be that important who Trump nominates to replace Ginsburg.

What do you say?

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