We Need Supreme Court Justices with Chutzpah | Opinion

The current attention on Supreme Court nominees and justices—between Amy Coney Barrett's confirmation hearing and some Democrats' threatening an FDR-style court-packing plan—raises an important question: What virtues should citizens demand from those who would sit on the nation's highest Court?

Three characteristics are indispensable, if constitutional government is to survive in the United States: Deep understanding of the design, purpose and actual words of the Constitution; admiration for the wisdom enshrined in the Constitution; and chutzpah.


The highest responsibility of the Supreme Court is to uphold the Constitution precisely when the American people, and their elected representatives, are tempted to ignore it by supporting laws, government programs and regulations that are unconstitutional—and therefore likely unreasonable, unwise and unjust.

America's self-governing constitutional republic cannot survive if elected legislators exercise powers the Constitution does not grant to them, and judges don't call them out when they do.

While, ideally, it would be good to have a majority of senators and representatives who understand the Constitution, it might be more realistic to aim for a majority of Supreme Court justices.

Citizens should demand Supreme Court nominees who have a deep understanding not merely of the words of the Constitution, but also of the grand purpose and design of the Constitution, which requires knowing more than mere case law.

To rely on case law is to rely on past Supreme Court justices, including many progressive justices, who have twisted the Constitution's words beyond recognition in order to rubber stamp blatantly unconstitutional progressive legislation, regulation and spending.

We should demand actual constitutionalists for the Supreme Court: nominees who have studied the literature of the American Founding, including the great debates and commentaries on the Constitution—foremost The Federalist Papers—as well as the words of the Constitution.


But it is not enough for a justice to simply know what the Constitution says. There have been and continue to be progressive Supreme Court justices who know much about the original meaning of the Constitution, yet care more about using their position of legal power to push for the progressive goal of total government central planning. Progressive justices are intent on disregarding or even undermining the Constitution, and have done just that.

We need justices who, in addition to understanding the Constitution, respect and admire the wisdom in its design. We want justices who are partisans of the Constitution and advocates for the cause of constitutional government.

Amy Coney Barrett
Supreme Court nominee Judge Amy Coney Barrett arrives to her Senate Judiciary Committee confirmation hearing on Capitol Hill on October 12, 2020 in Washington, D.C. Win McNamee/Getty

The Constitution, after all, deserves respect because it is wisely designed. It reasonably limits the powers of often unreasonable human beings in government, directing their few powers to a goal inseparable from political justice: protecting the natural liberty and private property of each and every individual citizen.

The Constitution also reasonably and wisely separates government power, each branch from the other two, and separates, to varying degrees, parts of government from the greatest of all threats to the American people: Themselves, acting as an irrational mob, whipped into passionate frenzies by political demagogues.

That's precisely why the Supreme Court should "declare all acts contrary to the manifest tenor of the Constitution void," as Alexander Hamilton explained in The Federalist 78, because "No legislative act contrary to the Constitution can be valid." He continued, "If there should happen to be an irreconcilable variance between the two...the Constitution ought to be preferred to the statute."


The greatest challenge for constitutional government today stems from a century of progressive demagogues tempting Americans with empty promises of free things and perfect security in exchange for unconstitutional control over our lives and property.

The result? A progressive state that regulates and subsidizes virtually everything, operating outside constitutional constraints.

It's more important than ever to find genuine constitutionalists—originalists—to sit on the Supreme Court. And it's more difficult than ever to actually uphold the Constitution from the bench.

The seduction of progressive central planning—the promise that government experts will solve our problems, provide for us, keep us safe from everything we find to be scary (including viruses) and be the engine for technological innovation and invention—has spread to virtually every part of modern American society.

The work of originalist defenders of the Constitution on the Supreme Court will be met with growing, intensifying, perhaps even violent opposition from large numbers of progressive Americans who find comfort in the unconstitutional government we now have.

Perhaps the most important virtue we need in future Supreme Court justices, therefore, is courage: justices willing to take the heat when upholding the Constitution triggers ridicule or attacks from progressives.

Justices who uphold the Constitution, who help in the great and noble effort to save constitutional self-government in America, are justices who are not likely to be in attendance at fancy cocktail parties, given awards at cultural events or invited to speak at progressive conferences.

Truly constitutional justices have to be thick-skinned because they are far more likely to be ridiculed by the media, used as fodder for the lineup of late-night comedians and mocked endlessly by progressive activists on social media. They need to be ok with that, and maybe even dish back what progressives dish out.

They need to be Supreme Court justices with chutzpah.

Thomas L. Krannawitter, Ph.D., is cofounder and chief content officer at The Vino and Veritas Society and former vice president of the Claremont Institute. He has taught at Claremont McKenna College, Hillsdale College and George Mason University and is the author of numerous books.

The views expressed in this article are the writer's own.