Douglas W. Kmiec is a professor of constitutional law at Pepperdine University. He served as Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice under Presidents Reagan and George H.W. Bush. He serves now as a co-chair of the Romney for President Advisory Committee on the Constitution and the Courts.
In the piece below, submitted to Power Line by the Romney campaign, Professor Kmiec previews the Supreme Court term that starts this week, and argues that a President Romney would appoint Justices who decide cases consistent with a deep understanding of the rule of law. This includes the kind of approach to judging that Justice Thomas described at dinner on Monday which is called “originalism.” It also includes an awareness that, as Justice Scalia has put it, the Supreme Court is not a “junior varsity Congress.”
With the beginning of the new Supreme Court term, it is appropriate to reflect, yet again, on the founders’ intention for the Court to be the “least dangerous branch.” This does not mean that the Court was thought to be unimportant. Quite the contrary, in introducing the Bill of Rights, James Madison anticipated that the Court would be the guardian of our civil liberties.
And even before the Bill of Rights were added as amendments, Alexander Hamilton keenly observed that the Constitution itself, in its structural separation of powers, was itself a Bill of Rights. No, the appellation as “least dangerous” was meant as a compliment. It was the Court that would be the keeper of foundational ideals, including the founding idea most essential of all