Today in the New York Post, the chairman of COMMENTARY INC.’s board, Michael W. Schwartz, offers an original and fascinating take on the Sotomayor nomination and the condition of the Supreme Court:
The modern court has issued rising numbers of 5-4 constitutional decisions — rulings that fasten virtually unchangeable rules upon the country, on matters of intense national importance, by a court whose members can’t agree among themselves about the decisions they’re issuing, or the reasons that justify them.
The court, that is, functions not as the “one supreme Court” envisioned by the Constitution, but as a collection of nine individuals who privilege their own self-expression above the constitutional role assigned to the court — namely, in Chief Justice John Marshall’s famous phrase, to “say what the law is.”
