By Peter Roff, Thomas Jefferson Street blog
An exchange between Wisconsin Democrat Herb Kohl and Sonia Sotomayor during her first day of testimony before the Senate Judiciary Committee made me think of Animal House. Kohl, who before becoming a constitutional scholar was the owner of a professional basketball team, quizzed Sotomayor on her views about privacy as relates to the U.S. Constitution. "As you know Judge," he asked Sotomayor, "the landmark case of Griswold v. Connecticut guarantees that there is a fundamental constitutional right to privacy as it applies to contraception. Do you agree with that? In your opinion, is that settled law?"
"That is the precedent of the court, so it is settled law," she said.
A moment later Kohl asked, "All right. Judge, the court's ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?"
Sotomayor replied, "The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court."
And this is what reminded me of the movie. Remember the scene near then end where, after Dean Vernon Wormer has kicked the Delta's out of Faber that the late, great John Belushi rallies his fraternity brothers in a speech that begins, "Over? Did you say 'over'? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no! ... and it ain't over now."
So, when it comes to the way Kohl and Sotomayor view the law, things apparently are over when the Supreme Court says they are, they are "settled law." This is a view which should probably come as a shock to President Barack Obama, considering what the Supreme Court found in the Dred Scott case and cases like Plessey v. Ferguson.
All kidding aside, how can we expect people like Kohl and Sotomayor and other liberals to consider anything settled law when they refuse to agree that even something as august and important as the Constitution is not settled law. That's what all the rhetoric portraying the Constitution as a "living, breathing, evolving document" is about. It's about establishing a rational that allows for the making of law from the bench based on personal opinions or biases—which is why Sotomayor's comments about the Court of Appeals being "where policy is made" had so many people up in arms.
Either the Constitution means what it says, what is written on the page, or it doesn't. When the First Amendment says "Congress shall make no law," it means just that. Congress shall make "no" law—not one law, or a few or a small number of them, just to see if anybody notices—and if it does it is up to the Supreme Court to say "You can't do that, Congress," as it should have done when it opined on the constitutionality of the McCain-Feingold campaign finance law.
Instead what we now have, and what Sotomayor appears to endorse, is a system where an elite and predominantly liberal legal culture wields the hammer of "constitutionality" as though it were a club with which to end the debate, with any court ruling they like being the last word on the subject, a dangerous thing for our democracy and for our Republic.