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The Supreme Court Should Be More than the ‘Big Show’

The American experiment with self-government is on life support. A key measure of its demise is the apoplectic reaction to the retirement of Supreme Court Justice Anthony Kennedy. Writing in Time, same-sex marriage advocate Jim Obergefell warns that “the civil rights of millions of people are in serious risk.” Ilyse Hogue, president of a national pro-choice organization, predicts that “vicious anti-woman activists” will transport America back into the 19th century. “We will not and must not accept” such a result, Hogue inveighs. Other commentators make similar dire prognostications about affirmative action in college admissions, voting rights, and application of the death penalty.

From the rhetoric, an observer unfamiliar with current American politics would think that Kennedy must be a shrewd congressional leader capable of corralling supermajorities to push through legislative programs. Or perhaps he is the nation’s chief executive, brought into office with a landslide victory, and shaping American domestic policy with an uncanny vision for the future.

Of course, Kennedy is not an elected official. Instead, he is one member of the Supreme Court—top of a national judiciary that Founding Father Alexander Hamilton in Federalist No. 78 claimed would be “the least dangerous” branch of government, restricted by a “natural feebleness” and unable to endanger “the general liberty of the people.”

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent Institute books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.

New from William J. Watkins, Jr.!
CROSSROADS FOR LIBERTY: Recovering the Anti-Federalist Values of America’s First Constitution
What did the American Founders actually intend for the country, and does it even matter today? In a time of increasing turmoil over American history, politics, and society, Crossroads for Liberty takes an eye-opening look at the American Revolution, the Articles of Confederation, and the Constitution, and asks what we can learn from them. Readers will come away with a greater understanding of current political and constitutional issues, as well as a new perspective on American history.