Who Holds the Power?
By Thomas L. Jipping, J.D.
September/October 2000 Family Voice

“The federal judges a President chooses may be his most profound legacy.” So spoke Republican candidate-to-be Sen. Bob Dole to an audience of newspaper editors during the 1996 presidential campaign. The selection of judges should be a central issue in the current campaign, as well.

Many Americans know little about the judiciary, even though it governs much of their lives. According to research by the National Constitution Center, more than 40 percent do not know the number of branches in the federal government, and 80 percent do not know the number of amendments in the Constitution. Only 2 percent of teenagers can name the chief justice of the U.S. Supreme Court, and nearly twice as many teens can name the Three Stooges than those who know the first three words of the Constitution.

This ignorance is dangerous, because the common prediction that the next president will appoint at least one U.S. Supreme Court justice will likely come true. Only four presidents in American history have not done so. The six years since President Clinton’s last appointment of Justice Stephen Breyer constitute the longest stretch since 1870. Three members of the Court are at least 70 years old.

However, federal judges are powerful not only because they decide cases involving hot-button issues, but because their decisions shake—or support—the foundations of our freedom. The Court’s 1999-2000 term proved that. America’s founders designed a system that preserves freedom by limiting federal government power. In a May 2000 decision titled United States v. Morrison, the Supreme Court enforced these limits by striking down the Violence Against Women Act, a bad federal law that would have turned local criminal prosecutions into federal civil lawsuits.

America’s founders also designed a system that preserves freedom by dividing federal power among three branches. That system leaves the task of making laws to the legislature. In a March 2000 decision, Food and Drug Administration v. Brown & Williamson Tobacco Corp., the Court enforced this principle. It struck down regulations by an executive branch agency that had not been authorized by Congress.

While these decisions were sound, each prevailed only by the slimmest 5-4 margin. If the next president replaces one of the majority with a justice who places politics ahead of the Constitution, no obstacle to unlimited federal government power will remain. The freedom of all Americans will be jeopardized.

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