Liberals have placed a lot of hope in the Supreme Court of the United States since the 1960s. Their hope was not misplaced, as they convinced the court to enact liberal policy preferences in a host of decisions ranging from privacy to abortion to marriage to gender and beyond, in situations where neither Congress nor the states were moving fast enough – for them – in passing legislation.
From Griswold v. Connecticut to Roe v. Wade to Lawrence v. Texas to Obergefell v. Hodges to Bostock v. Clayton County, the Left has managed to accomplish a host of items on its agenda by getting the Supreme Court to legislate by judicial fiat.
It’s not a stretch to say that liberals have become so addicted to this method of enacting its policy preferences that judicial confirmation hearings in the U.S. Senate have degenerated into embarrassing spectacles every time the nominee is seen as a judicial conservative who might oppose the way some of their favorite Supreme Court decisions were determined. Think Clarence Thomas, Samuel Alito, and who can forget Brett Kavanaugh’s confirmation experience?
That liberal experiment of co-opting the courts may, hopefully, be coming to an end with the confirmation of Justice Amy Coney Barrett, a self-professed originalist. At least for the near future.
Liberals, of course, took offense to the Barrett nomination for a whole host of reasons, but primarily they were justifiably worried that the addition of Barrett to the conservative wing of the court will end the gravy train of judicial activism they have been riding for decades.
In fact, it was interesting to watch Senate Minority Leader, Charles Schumer, D-N.Y., bemoan Barrett’s confirmation in the direst terms possible. “Today, Monday, October 26, 2020, will go down as one of the darkest days in the 231-year history of the United States Senate,” he said in his floor speech opposing the nominee.
Such hyperbole is misplaced. So is the oft-repeated threat by liberals to “pack the court” in response to Barrett’s confirmation.
For liberals in Congress to pack the court via legislation, they would need to control the White House, Senate and House sufficiently to pass a law creating a 13 or 15-member Supreme Court. But why do that if you have the means to pass laws reflecting your policy preferences?
Do you want to again punish Americans for refusing to carry health insurance, as was once part of Obamacare? Pass a law.
Do you want to enshrine abortion on demand up to the point of birth into our nation’s laws? Pass a federal statute. Or a state statute.
Do you want same-sex marriage enshrined in law so that the Supreme Court can’t overturn Obergefell? Pass a law.
Do you want to redefine the word “sex” to include people who believe they are other than their biological sex, rather than helping them deal with the underlying psychological issues? Pass a law.
The concept is really not that hard. Our republic is set up so that if you want to see your policy preferences enacted into law, all you need is to go convince enough of your fellow citizens to vote for the people who will enact those laws.
A conservative Supreme Court just means that within the boundaries set by the Constitution and the Bill of Rights, Congress can pass the laws – and its policy preferences – without worrying that the high court will reject it.
The only catch is, you’ll have to make sure that those laws are as popular as you say they are, or your length of stay in Congress may be shorter than you would like.
In 2011, Justices Antonin Scalia and Stephen Breyer spoke to the Senate Judiciary Committee and answered questions on the topic, “Considering the Role of Judges Under the Constitution of the United States.” The two justices often appeared together and spoke on this subject while Justice Scalia was alive. Although the two jurists had differing approaches to interpretation of laws and constitutional provisions, they were remarkably in agreement about the limited role of judges.
For example, in explaining the role of judges, Justice Breyer talked about how policies are created and turned into legislation, and ultimately heard by the courts.
“I think the general word I use to talk to about that is the word ‘bubbling up.’ The first thing that happens, people start to talk. They talk in newspapers. They talk in classrooms. They talk in articles. They talk in small groups. They talk with the policemen. They talk with the firemen. They talk with the civil liberties groups. They talk to everybody under the sun, and they begin to debate, and they get into arguments. Eventually it gets to [Congress]. You have hearings. You eventually decide maybe an agency should do it. Maybe we should have a statute. Maybe we change our mind five times. And eventually things will settle down.
“And what I say about my Court, it is really wonderful if we do not get involved until it settles down, because our only job is going to be to decide if what you decide is within the boundaries. And it is going to be a subject where we will know less about it than those Americans who have gone into it in depth, so be careful of intervening before this big debate, this clamor that Tocqueville is talking about, has a chance to take over, take effect, scream, change, try it on, try it off.
“And I think that is really the wisdom that underlies this view of do not decide too much too fast.”
Justice Antonin Scalia, for his part, argued that if the Supreme Court exercised its proper role as a court, there would be less political controversy.
“However, in my view, when the Court is operating properly, when it is not applying its own view of what the Constitution ought to be but is interpreting the legal text, as lawyers do, understanding the meaning of those words and the history behind those words, there is a lot less need for politics to intervene. I mean, there is no such thing as a Republican good lawyer and a Democrat good lawyer. You are either a good lawyer or you are a bad lawyer,” Scalia told committee members.
Liberals are worried that a Supreme Court with another conservative justice will begin to overturn all of their hard-fought, but illegitimate, policy gains via court decisions. That may happen or it may not. Even the so-called conservative wing of the court does not march in lockstep, as many decisions over the years aptly demonstrate, including even the recent Bostock opinion in which Chief Justice John Roberts and Justice Neil Gorsuch joined the four liberal justices to redefine the word “sex” in federal statutes.
So, there is a lot of over-the-top, “sky is falling” rhetoric from the Left at the moment over the Barrett confirmation. But the absolute worst-case scenario for liberals, despite Sen. Schumer’s “darkest days” assessment, is that they should pass laws that reflect their policy preferences.
And that, after all, is how our constitutional democracy is supposed to work.
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