OPINION: Judicial 'solution' would just result in judicial gridlock

 Although I never would have believed I would agree with P. David Myerowitz on anything, I must agree with him on one point he addresses in his Aug. 11 letter: “Politically motivated judicial activism” (i.e., judges basing their judicial decisions on their political biases, rather than on the U.S. Constitution and the Supreme Court precedents that have interpreted it) is bad.  

Unfortunately, we will all have to live with Scalia’s presence on the court until he retires or dies. As remedies for “judicial activism” Mr. Myerowitz proposes that either a “super majority” of Supreme Court justices, or a unanimous court be required to “decide major cases.”  His suggested remedies are even worse than the disease.  

In the instance of a requirement for a unanimous court to decide “major cases,” it is clear that it would take only one “politically motivated” justice to block the other eight justices from rendering a decision that might be, in Myerowitz’s words, “solidly based.”  

A “super majority” requirement to “change a long accepted part of our laws and culture rather than make these decisions on ideological grounds” would likewise enable, and even promote, “politically motivated” decisions, since a minority of justices could block a majority of justices from rendering a “solidly based” decision.

Myerowitz has expressed contentment with abiding by the “lower court ruling” if the Supreme Court be unable to satisfy his “unanimous” or “super majority” proposal. But what if the “lower court ruling” is not “solidly based?” Or, what if the various U.S. federal circuit courts of appeal are divided on an issue? Should the Supreme Court majority be precluded from resolving such uncertainties in our law because of the political biases of a minority of Supreme Court justices? I don’t think so.  

It is clear that Myerowitz’s ire on this issue was generated by his discomfort with the court’s “gay rights” decision in Obergefell v. Hodges. However, I can’t help but wonder whether Myerowitz, and others of his political leanings, would advocate support of a “super majority” rule if the Supreme Court were ever to revisit Roe v. Wade.  Somehow, I doubt it.

There is a point I made in my previous letter that has been misconstrued by Myerowitz. I did not accuse him of trying to “trample the Constitution” because of his desire to prevent “judicial activism.” Nor do I consider his “demand that [judicial] decisions be made based on our Constitution rather than by political leanings” to be inappropriate in any way. I used the term “unconstitutional” to describe Myerowitz’s previous insinuation that constitutionality should be decided by popular vote rather than by the judicial branch.

Myerowitz states that he “should be able to suggest legislation that would require a super majority of justices vote to change a long accepted part of our laws and culture rather than make these decisions on ideological grounds.” Certainly, Myerowitz has the right to suggest any remedy for “judicial activism” he can contrive. My disagreement is that the ones that he has suggested do not fix the problem, but make it worse.  

Myerowitz’ solution, in my opinion, would result in judicial gridlock at the highest level of our judicial branch. Haven’t we seen enough of that in our legislative branch?           

Weed is a resident of Kalispell.