CHAUTAUQUA–An organization annually invites a speaker to Chautauqua Institution.

Chautauqua doesn’t select the speaker. The organization does. It’s legally separate from Chautauqua, and its principal location isn’t in Chautauqua.

Following the 2023 speaker, this column reviewed the organization’s Chautauqua speakers over the years and observed that if a liberal spoke in 2024, the share of the organization’s Chautauqua speakers who have been liberals would rise to 90 percent.

Having liberals speak is fine. But 90 percent? Balance, though not required, would serve not only Chautauqua but also the larger community well.

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It didn’t take long for the 2024 speaker to reveal–or to put it more precisely, all but reveal–that the share had indeed risen to 90 percent.

How so? By the speaker’s referring to “gun safety.”

What’s gun safety? Gun safety is what one learns during, for example, a pistol-permit class when instructors state that one never picks up a gun without checking to see whether it’s loaded.

The speaker wasn’t talking about gun safety though. The speaker was talking about gun control, for which gun-control advocates often and incorrectly use the appealing term “gun safety.”

The speaker further revealed the speaker’s liberalism by describing particular U.S. Supreme Court decisions with words such as “madness,” “hubris,” “a lack of humility,” “wildly disruptive,” “outlandish,” and “audacious.”

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Then came the question-and-answer period.

We’ll focus here on the last question and answer, which addressed the high court.

Moderator: “Our last question. If you could wave a wand, and make court reform happen, what would you prioritize?”

Speaker: “Oh, this is so hard. Ummmmm. Ahhhhh. Court reform happen. I mean I, I guess I think that at this point, I, I was, court expansion, right, sometimes referred to as court packing, court expansion is something I’ve, I’ve, I have long thought was really, I was a little bit squeamish about it, and I think I’ve, I’ve, kind of come around to. This court is going to be an enormous obstacle to implementing popular will for the foreseeable future, and I actually think if you had a president and a Congress that just could by statute add a bunch of additional seats to the Supreme Court, I think I’ve come around to the conclusion that, that that’s what should be pursued. So yeah, there’s my wand.”

What to make of that?

For starters, notice how the speaker at first uneasily and then casually (“just … add a bunch of additional seats … there’s my wand”) addresses court packing. The unease is justified for three reasons.

≤ First, as you, faithful reader of this column, have read, court packing is a bad idea regardless of the result. Let’s repeat that: Regardless of the result.

≤ Second, when liberal judicial activism–shall we say–held more sway in the high court, to what extent did liberal judicial activists advocate court packing?

Yet now that the high court has a 6-to-3 originalist majority, some liberal judicial activists advocate court packing, which even Justice Ruth Bader Ginsburg–who was no originalist–opposed.

Do you suppose they’ll continue such advocacy when a president committed to appointing originalist justices would fill “a bunch of additional seats”? That’s an easy question, isn’t it? What does the answer tell you?

≤ Third, notice the premise behind court packing: “implementing popular will.”

Whoa.

Let’s remember that what judicial activists of whatever stripe tend to want is not “popular will” but their will. Their will.

Nevertheless, let’s assume the speaker really does want the high court to base decisions on “popular will,” not liberals’ or the speaker’s will. The response is simple: The Supreme Court must apply the law, including the Constitution, not “popular will.”

To understand that, one needn’t ever set foot in a law school. Consider what basing court decisions, including constitutional-law decisions, on “popular will” would have meant for several high-court challengers.

They include (1) the slave who sued for his freedom in Dred Scott v. Sandford.

They include (2) the railroad passenger who in Plessy v. Ferguson asserted his right not to sit in a racially segregated car.

They include (3) Jehovah’s Witnesses who in West Virginia Board of Education v. Barnette asserted government may not compel the reciting of the Pledge of Allegiance.

They include (4) Japanese-Americans who in Korematsu v. United States asserted it was unconstitutional for President Franklin Roosevelt to put them into camps during World War II.

They include (5) the Brown v. Board of Education plaintiffs who challenged the constitutionality of racially segregated schools.

For various reasons, (1), (2), and (4) absurdly and tragically lost.

Yet under “popular will,” (1), (2), (3), (4), and (5) would have absurdly and tragically lost, because “popular will” was against them.

Absurdity and tragedy are where basing court decisions on “popular will” can lead.

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Dr. Randy Elf’s Sept. 21, 2024, brief in the U.S. Court of Appeals for the Ninth Circuit is at https://works.bepress.com/elf/292. The brief explains–based on the First Amendment, not popular will–how “Ninth Circuit law errs” and that the court “should conform its case law to Supreme Court case law.”

COPYRIGHT (c) 2024 BY RANDY ELF