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I have said that the #1 reason that I voted as I did in the recent election was the Supreme Court nominations that the next POTUS would make.  I argued that it would shape the court and our society for a generation or more and have a lot to do with the country/society that my grandchildren are raised in.

I will share my view as to why I say that.  In full disclosure, I AM BIASED.  Surprise! I invite you to share your understanding and views.

Library walls are filled with written discourse on this issue.  I might not even be using the right words or using them in the right context. I have not had one law course, yet at some basic level I think I know enough to understand why I believe so strongly, so here goes.

The primary role of the Supreme Court of the United States (SCOTUS) is to protect a minority from the tyranny of the majority.  So, how do they do that? First the Constitution is the foundations for that protection and the Supreme Court interprets and preserves the Constitution. It is the Supreme Court that rules if one of the other two branches of government – Congress or the President – pass a law or execute a law or ruling inconsistent with the Constitution. For example, Congress – with the support of the American people – could pass a law that requires that all Hindu citizens must convert to Christianity. With the majority of citizens being Christian (at least more than Hindu), the law could have the support of the people.  The Supreme Court has the power to overrule or stop Congress or the President if the law violates the Constitution which of course this example would. Sounds simple but it isn’t.  Should SCOTUS read the Constitution literally or read it for the authors’ intent?  Should they consider technology and societal changes? These and other questions are the basis for unlimited writing and debate. That said, I have boiled it down to this.

The GOP Presidents have tended to appoint “strict Constitutionalists or Constructionists” while the DEM Presidents have tended to appoint what I will call “Activist” Justices. Constitutionalists stick close to Constitutional interpretation while Activists tend to take a much broader look when ruling including: intent of the authors of both the Constitution and the new law written in the case of Congress, changes in background/technology from the time the Constitution was written to today and societal changes.  Some – like me – see this activism as akin to making or shaping law.  Constitutional-leaning judges say, “words have meaning and it is not our role to try and divine what the authors meant.  We look at what they said.”

Writing new law is clearly defined as the job of Congress; and for good reason.  We are a Republic – a representative form of government not a strict democracy.   The Congress is to reflect the will of the people.  If they are constructing and passing laws that We The People disagree with, we have the option every two years to change House Members and every six years to change a Senator. A Supreme Court Justice is appointed for life.  If they become activist and begin to aggressively “shape” law by their rulings, we have no way to change a sitting Justice.  That is my rationale as to why I believe our Founding Fathers intended for the SCOTUS to be strict Constitutionalist Justices versus Activist Justices.

Now my question for you.  Why do GOP Presidents tend to appoint Constitutionalist Justices while DEM Presidents tend to appoint Activist Justices?  I’d like to hear your thoughts. Post in comments below.