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15 questions for potential new SCOTUS justices

Editor's note: These questions were originally written when Neil Gorsuch was nominated to the Supreme Court. They are just as vital today with a new opening on the court.

If conservatives really want an originalist on some of the most consequential issues of our time, it is important to ask nominees to the court questions about the role of the courts in constitutional interpretation compared to other branches of the government. If we could sit down for an hour hour of time with any high court nominee, here are the 15 questions and issues we would discuss.

Constitutional interpretation

1. Does the Supreme Court create “settled law?” Is it the final arbiter?

What the Founders envisioned as the weakest branch of government has now become a place where political discourse goes to die. Scalia pointed out as much in the Obergefell decision months before his death.

Is Obergefell truly “settled law?” Is any watershed ruling? Or was the concept of judicial supremacy something contrived in the 20th century that has since been used to pull issues out of public debate and put them squarely in the control of the legal profession?

Under prevailing legal thought, the precedent of judicial review that was gleaned from Marbury grants federal judges the right and responsibility to review the constitutionality of laws in addition to interpreting the application of statutes. Does that mean the courts are the sole and final arbiter of all questions of constitutional interpretation, binding on all 50 states and the other two branches of the federal government (Cooper v. Aaron (1958))? Or does it merely give judges a concurrent say in constitutional interpretation for the purposes of resolving specific controversies before it that don’t have bearings on broad political and social questions?

If the latter, doesn’t that mean in the same way judges swear an oath to uphold the Constitution as they understand it when it intersects with their powers, the legislative and executive branches have the right — and per John Marshall, even the responsibility — to interpret the Constitution as they understand it when it intersects with legislative or executive power? If a judge — a member of the weakest branch of government, which was to have “neither force nor will” — must decide cases in accordance with his oath to the Constitution, doesn’t Marshall’s argument dictate that the stronger branches and even the states must not follow patently unconstitutional court decisions when exercising their own powers?

2. Does the concept of stare decisis violate the judicial oath of office? Do you support the prevailing doctrine of treating erroneous landmark decisions as settled law when they manifestly violate the Constitution or its amendments as originally adopted?

The source of the contemporary belief that the federal courts are the law of the land is Marbury vs. Madison, wherein John Marshall said that for judges not to block implementation of unconstitutional laws would violate their oath of office. If the oath to the Constitution forces a judge to strike down a law duly passed by Congress and signed by the president (or passed by a state legislature and signed by a governor), isn’t it obvious that such an oath requires judges to overturn decisions of prior courts that unconstitutionally create law that never passed any elected branch?

3. Does Congress have full power over the jurisdiction of lower courts and the appellate jurisdiction of the Supreme Court?

Until recently, it was considered settled law that Congress, pursuant to Art. III Sec. 2, has full authority over the subject-matter jurisdiction of the lower courts and plenary power over the appellate jurisdiction of the Supreme Court. Do you believe there are any limitations on that power? Would you respect any limitations Congress places on the jurisdiction of the federal judiciary and be willing to overturn any lower court that violates Congress’ power?

4. Is the Supremacy Clause binding states to the supreme law of the land referring to the Constitution as it was originally adopted or to Supreme Court decisions?

Do you think rulings at the Supreme Court are better thought of as “law,” as that term is contemplated by Article VI’s Supremacy Clause, or are they better thought of as ad hoc judgments that merely lend persuasive authority to broader constitutional/political principles? What is the meaning of “Supreme” in Art. III, where “Supreme Court” is defined? Does it merely refer to a power to reverse lower court judgments, and nothing more?

5. Do you feel it is an obligation of the Supreme Court to grant certiorari or a stay for appellants when a lower court decision or injunction is built upon a prima facie “living and breathing Constitution” doctrine?

We are seeing a slew of lower courts blocking very consequential federal, state, or local laws and practices that are clearly built upon a desire to take sides in a controversial political question.

Religion in the public square

6. Do you believe that the Establishment Clause merely prevents the federal government from choosing an official state religious denomination and coercing individuals by force of official penalties “to worship God in any manner contrary to their conscience,” as Madison said?

As such, shouldn’t any case where a government entity or school merely exercises religious expressions and displays symbols without penalty of punishment to those with differing views be completely irrelevant to this clause?

Moreover, does the Establishment Clause apply to individual states? Do you agree with Justice Clarence Thomas that “applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby 'prohibit[ing] exactly what the Establishment Clause protected'”? (Town of Greece v. Galloway (Thomas, J., partial concurrence)).

Immigration

7. Do you believe there are any exceptions to the plenary power doctrine?

Since our founding until the modern era, the courts have upheld the plenary power doctrine that Congress — acting on behalf of the citizenry and national sovereignty — has the power to exclude or deport any foreign national or groups of immigrants for any reason. The courts, in what has been considered one of the most settled areas of law, declared that there is no affirmative right to judicial review to keep a foreign national in the country against the national will. Further, they have ruled that the process established by Congress through statute to deport an alien is due process. In recent years, however, the modern legal profession has chipped away at national sovereignty.

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