Sen. Joe Biden probably does not realize it, but in his exchange with Judge John Roberts in today’s confirmation hearing, he echoed the basic complaint conservatives have made about the Supreme Court for decades: It has become a super-legislature where five unelected people can decide–virtually without accountability–the most profound issues of public policy.
Biden did this when he candidly likened Roberts to a senator running for office–then chastised Roberts for not answering questions about “issues” just as he would be made to do if he were a politician running for office.
“[I]t’s kind of interesting this Kabuki Dance that we have in these hearings,” said Biden. “As if the public does not have a right to know what you think [on] the fundamental issues facing the country. There is no more possibility that anyone of us here would be elected to the United States Senate without expressing broadly, and sometimes specifically, to our public, what it is we believe. The idea that the Founders sat there and they said: Now, look, here’s what we’re going to do. We are going to require the two elected branches to answer questions to the public with no presumption they should have the job of senator, president or congressman. But guess what? We are going to have a third co-equal branch of government. It gets to be there for life—never, ever, ever again to be able to be asked a question they don’t want to answer. And you know what? He doesn’t have to tell us anything.”
Of course, the Framers did not intend for the Supreme Court to legislate in any way. When the Court sticks to its proper judicial role, it does not matter what legislation the justices may personally prefer because they are not enacting legislation.
In a Supreme Court that does not usurp legislative authority, honest justices who have utterly opposing views on public policy issues can vote identically on constitutional issues.
For example, one justice may favor high and progressive federal income tax rates. Another may favor a low, flat tax. But because the Constitution gives Congress, not the Supreme Court, the authority to set tax rates, both would agree that if a lower federal judge ordered the IRS to increase the top marginal income rate to 95% the order should be overturned by the Supreme Court.
The Supreme Court, of course, has not — yet — tried to set federal income tax rates. But it has seized legislative authority not granted to it by the Constitution in other areas of public policy — i.e. in legalizing abortion-on-demand in all 50 states, in declaring that voluntary prayer in a local public school “establishes” an official state religion, in ruling that the constitutional provision which says Congress may regulate commerce “among the several states” really means Congress may regulate noncommercial activities within one state, and in ruling that equal protection of the laws requires state colleges to grant special privileges to some.
What Biden believes, but won’t come right out and say, is that the Court has assumed extra-constitutional legislative powers to advance the liberal agenda–enacting by judicial fiat legislation that Biden and his liberal Democratic colleagues in real elective offices could not succeed in enacting in real legislatures that have to answer directly to voters.
What Biden fears, of course, is that Roberts will vote on the Court to reverse some of this liberal super-legislation. Or even try to stop the Court from legislating, period.
Here is hoping Biden is right.