Standard for Evaluating the Coming Supreme Court Nominee
Dear Senator McConnell,
As you are aware, the Senate expects to receive a nomination to the United States Supreme Court in the coming days. On behalf of our twelve thousand supporters across all fifty states, Judicial Action Group respectfully requests that you demand, as a condition to confirmation, that the coming Supreme Court nominee align with the constitutional standard for the judiciary articulated in the Constitution.
In furtherance of our request, below we explain: (1) the constitutional standard for judicial nominees, (2) how departing-Justice Breyer’s stated philosophy is antithetical to the Constitution, and (3) why the next Supreme Court nominee should be required to affirm the constitutional standard for the Supreme Court and to refuse to adopt the anti-constitutional judicial philosophy of Justice Breyer.
1. The Constitutional Test
The Constitution vests you as a United States Senator with the duty to "advise and consent" on nominations to the United States Supreme Court. Your “consent” should be conditioned on the nominee demonstrating that she would only exercise judicial power as defined by the Constitution.
The Constitution provides that: "[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, [and] the laws of the United States ....” 1 Simply put, the Constitution confers judicial power upon judges to decide cases, but prohibits them from exercising legislative power which is exclusively “vested in a Congress of the United States.”2
2. Justice Breyer’s Judicial Philosophy is Unconstitutional.
The anticipated vacancy on the United States Supreme Court results from the announced retirement of Justice Stephen Breyer, who has been a leading advocate of judicial activism. Justice Breyer is no doubt an intelligent, thoughtful person. Unfortunately, Justice Breyer’s judicial philosophy is inconsistent with the Constitution. In fact, Justice Breyer authored Active Liberty:
Interpreting Our Democratic Constitution, wherein he defends the judicial philosophy of “active liberty, [which] cannot be understood in a vacuum, for it operates in the real world. And in the real world, institutions and methods of interpretation must be designed in a way such that this form of liberty is both sustainable over time and capable of translating the people’s will into sound politics.” 3
Respectfully, Justice Breyer’s judicial philosophy is unconstitutional. The translation of “the people’s will into sound politics” occurs through the electoral and legislative processes but never through the judiciary. Were there any doubt as to Justice Breyer’s belief that the Court can legislate on behalf of the people, he resolved those doubts a mere three months ago. On December 1, 2021, during oral arguments in the Dobbs abortion case, Justice Breyer stated:
“[Roe is] a watershed. Why? Because the country is divided. Because feelings run high. And yet the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women's choice.”4
Justice Breyer is constitutionally incorrect. The country did not “decide” to resolve their differences on the questions of abortion when the Court usurped the people’s power and purported to create a so-called right to abortion. The people are entitled to resolve their differences through the proper constitutional processes. However, they are prevented from doing so when activist judges legislate from the bench and brand anti-constitutional judicial edicts as the spoken will of the people.
Justice Breyer’s judicial philosophy would result in a judicial oligarchy, which is incompatible with the structure of our constitutional republic.
3. The next Supreme Court nominee should affirm the constitutional standard for Justice of the Supreme Court and should disavow the anti-constitutional philosophy of Justice Breyer.
The next nominee for the Supreme Court should be asked to affirm the constitutional role of the judiciary, and to reject the anti-constitutional views of the justice she is replacing. It is proper for United States Senators to withhold their consent to the nomination of a Supreme Court justice unless and until the nominee demonstrates she will faithfully perform the constitutional role of a judge and not attempt to play the roles of both judge and legislator.
Accordingly, we respectfully request that you condition your consent to the confirmation of the next Supreme Court nominee on the nominee confirming that:
1. The role of the Supreme Court is to “decide cases.”
2. All legislative power granted by the Constitution is vested in Congress.
3. The Court has no legislative power.
4. The Court does not have power to translate the people’s will into sound politics. 5. The people of our country resolve their differences through the electoral and legislative processes not through activist decisions of the Supreme Court that purport to create new rights not found in the text or meaning of any of our laws.
Phillip L. Jauregui
President, Judicial Action Group
1 U.S. CONST. art. III, § 2
2 U.S. CONST. art. I, § 1.
3 Justice Stephen Breyer, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION, 16 (2005) (emphasis added).
4 Oral Argument at 5:39, Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (Sup. Ct. argued Dec. 1, 2021), available at https://www.oyez.org/cases/2021/19-1392.