Thread by @hughhewitt

The complete transcript of my interview yesterday with @GeorgeWill about his new book “The Conservative Sensibility” is now posted along with the audio. George and I agree that the best hope for the return of Madisonian principles is via #SCOTUS and the non-delegation doctrine.1

Key exchange:
HH: You are not such an optimist that the counter-majoritarian judiciary can actually check this. Where are you now on your enthusiasm level for whether or not the courts are up to returning us to the Madisonian design?
GW: Well, I don’t know if they’re up to it, 2

but they’re out last best hope. We have seen, and partly this was encouraged by careless rhetoric on the part of conservatives. Conservatives said for years what want is judicial deference. No. 3

We want to understand that judicial deference often is dereliction of judicial duty to supervise the excesses of democracy. There was a time when they had a doctrine called the non-delegation doctrine…
HH: Yes. 4

GW: …when they would say to Congress you have no right to spin off powers, essentially legislative powers, to executive agencies simply because it’s convenient for you to do so. The one great mistake, and it’s not really his fault, of sainted Madison said in the Federalist 5

Papers, you see in the legislature at all times a legislature sucking all power into its impetuous vortex. Well, the reverse has been the case for the last century....6

HH: There is in this Court, the Chief Justice is a man of extraordinary intellect. I think Brett Kavanaugh has got extraordinary intellect. I’m very hopeful about Justice Gorsuch. I know Justices Alito and Thomas have extraordinary intellect. 7

Do you think that the Court would find itself facing a revolt if it moved rapidly to restore the balance of power, the Madisonian dream that you so very carefully articulate in The Conservative Sensibility, if they moved quickly with the Establishment Clause this year 8

with the 2nd Amendment next year, with the right to life and the privacy doctrine cutback in the third year, would there be a revolt against it?
GW: I don’t think so. The Supreme Court, for all the fact that it has been swept into the maelstrom of partisan politics in recent 9

years, particularly with confirmation politics, the Supreme Court remains second only to the military as the most-respected American institutions. One of the miracles of modern American history is the fact that when the Court took a counter-majoritarian stance 10

in favor of racial segregation, which was not only opposed in the South but opposed in much of the North, we tend to forget, it is simply, the country with amazing acquiescence deferred to the Court. 11

So I think the Court, there’s no danger, in my view, that the Court is going to move too fast.
HH: And is there a danger that the Democrats really would pack the Court? Have they forgotten their history enough not to realize that 1937 was a disaster for FDR? 12

GW: Of course, they’ve forgotten their history, because they never studied it in schools, because schools don’t teach history anymore. But you’re quite right to warn them of this. In 1938, the country recoiled against Franklin Roosevelt’s A) plan to pack the Supreme Court, 13

and B) to purge from his party Democrats who resisted this assault on the Constitution. From 1938 on until 1964, there was no liberal legislating majority in Congress.” hughhewitt.com/george-will-on…