In true 2020 fashion, I was at dinner with my wife and enjoying a rare moment of normalcy when my phone started buzzing nonstop in my suit jacket. I reached in it, fully expecting one of two things, either someone had died or someone had been arrested. I saw the news that my least favorite Supreme Court Justice had finally succumbed to pancreatic cancer…officially…and waved the waiter over for two fingers of Oban 18-year to celebrate. Granted it was hard to be in a bad mood with the smoke and toffee notes of my favorite single malt finishing off an excellent dinner, the gravity of the bell that had been rung began to color the evening. Of all people, I have a laundry list of reasons to despise Ginsberg, but her death will send events into motion that are going to rock this country to the core.
I’ve called the Constitution a historical curiosity, and one of the primary reasons why is that it has never pinned down the third branch of government in any meaningful way. Lifetime terms for judges do not work; it is dangerous and scientifically untenable, yet we do it. The judiciary arose by fiat to begin with, deciding itself what its jurisdiction would and would not be in Marbury v. Madison. Later it went from jurisdiction to supremacy in McCulloch v. Maryland and became omnipresent in Wickard v. Filburn. No limits have ever even been set on the number of justices that may be appointed and set up as co-equal to the sovereign, philosophically untenable. The entire organization appeared ex nihiloand the real miracle was that everyone went along with it. Nine unelected judges have set precedent that has determined the President, affected foreign and domestic policy and allowed unparallel abuse of the one document they supposedly protect. I suspect it was the social pressure, respect for English common law and war-weariness that precluded any real fighting. In my unpopular opinion, the best thing Madison could have done was execute John Marshall and the entirety of SCOTUS the day he found out what they had done. Nevertheless, that did not happen and like Roe v. Wade, the 1994 AWB and Lawrence v. Texas…no one did a damn thing.
Yet here I am, a little over two hundred years later with brown liquor swirling in against a snow-white tablecloth and green eyes flashing with a terrible resolve. People are in an uproar as the chips fall and there are no good answers. You want the truth? We created this monster, we fed it and we are going to have to kill it. There is no Q or some other made up demi-god coming to absolve you of having to pick up a rifle and commit violence. The answer for most of the most plausible scenarios are settled in violence and lead, and all of this was imminently preventable. The Shakespearean irony of this whole situation is that the right is literally getting bludgeoned to death by the very thing they worship. The parallels to Merchant of Venice are positively amusing, pound of flesh…indeed.
First, whoever is president can appoint however many justices they want. If Biden would like submit the Judiciary Act of 2020 to appoint two additional justices to the court, he can. If Biden would like to appoint four or six additional justices, he can. I am personally rooting for him to appoint at least double digits, if he can remember that many names. My favorite part, it that it is all constitutional (Article III, Sec. 1). Deal with it. Whoever wins November will get to form SCOTUS in their own image, so long as the Senate flips. Absent that, the first time the left gains control of the executive and Congress they will change the makeup of the court. The absolutely best case scenario is that the Supreme Court is mildly right of center for a couple years until the court is packed. I was not kidding when I stated that you no longer live in a nation of laws. The consequences of that are now becoming evident.
Let’s consider a likely course of action and the election is contested. If the Supreme Court is reduced to eight members, there is a distinct possibility of an undecided option on the election. People remember Bush v. Gore, now tell me how that looks today. What exactly happens when there is a contested election and the supreme arbiters of our legal system split 4-4? Qui decernit? You better have an answer for that or be prepared to accept someone else’s at the point of a gun. Pray to your deity, hope against all hope some deus ex machina was written into this plotline by some cosmic Euripides if you want. However, for the love of all that is holy do not relegate yourself to human flotsam and not simply have your agency revoked, but refuse to even use it. We did not just lose a Supreme Court justice on September 18th, we lost the last vestiges of any legitimacy in our justice system.