Let’s pick up where we left off last week.

In whatever action or case particularly catching their attention, judicial activists tend to want the U.S. Supreme Court to base its decision not on the law but on their will.

Judicial activism previously held more sway in the high court than it does now.

Yet thanks to the appointment of originalist justices mainly by the Bush 43 and Trump administrations, the nine-member court has a 6-to-3 originalist majority.

The six are Chief Justice John Roberts, and Associate Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

It’s tempting to think the 6-to-3 count matters because of a few hot-button issues. But it’s way bigger than that. At base, it’s ultimately about the rule of law.

In a sense, Alexander Hamilton saw this coming. As Hamilton wrote in Federalist No. 78, “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

In other words, “the substitution of their pleasure” for the law undermines nothing less than the rule of law itself. That is where judicial activism of whatever stripe leads: To the undermining of the rule of law.

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Supreme Court justices tend to serve well beyond the terms of the presidents who appoint them. Thomas, for example, on May 20, 2028, will become America’s longest serving justice. Yet no justice stays forever. Think back to how many appointments these administrations have had to the high court:

�–� Nixon/Ford, five in eight years.

�–� Reagan, four in eight years.

�–� Bush 41, two in four years.

�–� Clinton, two in eight years.

�–� Bush 43, two in eight years.

�–� Obama, two in eight years.

�–� Trump, three in four years, and

�–� Biden, one in four years.

During this time, only the Carter administration had none.

If Donald Trump had lost the 2016 presidential election, then–all other things being equal–the current 6-to-3 originalist majority would have been a 3-to-6 minority. The high court would have had the most judicial activists since 1968.

Did the Nixon, Ford, Reagan, and Bush 41 administrations appoint only originalists? No, they didn’t. That’s why it took so long to get to 6 to 3.

Meanwhile, liberal judicial activists, such as the one about whom you read here last week, tend to want Trump to lose the 2024 presidential election. They know that with him in the Oval Office, they’re unlikely to make progress in getting the high court back into their corner.

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For all of these reasons and more, high-court appointments are an important presidential-campaign issue.

As you, faithful reader of this column, may recall, they are an issue that some disregard, perhaps because they either (1) like judicial activism, (2) don’t care, (3) don’t care enough, or (4) think they can rescue the court soon in another presidential election. Of those four, (1), (2), and (3) are mistaken, and (4) is in all likelihood mistaken.

Never Trumps, for example, would do well to appreciate that if they had had their way in 2016 and Trump had lost, that would have prevented getting to 6 to 3 and could have meant 3 to 6.

Then how many decades would it have taken to right the ship? What damage would judicial activists have done to the rule of the law during those decades?

Despite Never Trumps, the rule of law has avoided that damage for now. This is a victory for the rule of law.

But make no mistake. This is a victory on which no one should rest.

Liberal judicial activists, such as the one about whom you read here last week, have confirmed they won’t rest. One place to deter their undermining the rule of law is at the ballot box in presidential elections.

Are Supreme Court appointments the only presidential-campaign issue? Of course not. The Trump campaign rightly understands that. It also rightly understands high-court appointments’ importance as a–a, mind you–campaign issue.

Dr. Randy Elf’s charts on Supreme Court appointments since 1968 are at https://works.bepress.com/elf/65.

COPYRIGHT © 2024 BY RANDY ELF