Who would have thought we’d reach a point in history when the entire purpose of control of the Senate is to confirm judges so that the legislating can all be outsourced to the courts? Yet here we are: a vacancy for the swing vote on the Supreme Court is now the most consequential decision of our time.
Despite the opportunity to move the court to the right, I still believe the best thing for the country and for conservatives would be to push for a grand bargain – taking the key political issues of our time out of the courts and returning them to the political branches. In the long run, it’s the right thing to do, and judicial supremacy, will never be a worthwhile tradeoff for conservative political outcomes. Nonetheless, the Left built this system; now it’s time for them to lie in the bed they made. Trump should leave nothing undone to nominate the most verifiable conservative on the important issues of the day. Democrats will go nuclear on anyone he picks. He will not get brownie points for picking a stealth nominee who is unknown. I agree with those including Mark Levin who believe someone with a well-known philosophy like Mike Lee would make the most sense given the political dynamics of our time.
With that said, how much will really change even if Trump nominates someone like Mike Lee to fill Kennedy’s seat?
Anthony Kennedy wasn’t the only problem
We must remember that, even though we would have a clear 5-4 majority on most issues, there are a number of factors sustaining the judicial Gomorrah into which we have descended. It took decades to descend to the abyss, and we won’t escape it with one more Supreme Court pick.
Several years ago, I listed a dozen reasons why the court system is irremediably broken on political issues and why the judiciary seems to be (recent victories not withstanding) a one-way street and a dead end for conservative political outcomes. Ultimately, conservative justices, to their credit, will always be consistent and intellectually honest. But because of the inconsistency and intellectual dishonesty of the liberal justices, we too often lose politically in the long run. This is why we need to move, in general, toward taking political issues out of the courts.
A number of circuit courts and an endless number of district courts will remain irrevocably anti-constitutional, even if Trump secures two terms as president. There are a slew of new-age “resistance” types on the bench, and no number of conservative judges could counteract their disregard for the Constitution and all legal norms. So long as the other two branches show no signs of pushing back against the forum-shopped nationwide injunctions, the Left will always be able to create jurisprudential and political velocity for their radical ideas and grind our national security, immigration policies, abortion regulations, and election integrity laws to a halt. They control the law schools, all of the big litigators (the ACLU, NAACP, etc.), and direct most of the suits at the court. Thanks to their ability to get insane rulings from lower courts in the first place, they are often able to win in the Supreme Court with a combination of outcomes-based jurisprudence from the four leftists and a quirky principled doctrine from one conservative on a given issue. This is what we saw from Gorsuch in a big immigration case and from Thomas in North Carolina redistricting this past year.
There are times when the Supreme Court stays these radical lower court rulings, but some of them fester for years and are never restrained or overturned. Consider that the radical ruling from Judge Dolly Gee forcing DHS to release so many illegal aliens and causing so much political upheaval has been allowed to fester for three years. Perhaps the most radical decision in recent memory is several lower court judges ruling that it’s illegal for Trump not to violate immigration law and sovereignty and that he must continue Obama’s amnesty. The Supreme Court refused to nip it in the bud, and foreign nationals are still being given Social Security cards against the law.
So how much of this will change with a new pick?
Roberts as the new swing vote?
The 800-pound gorilla in the room after the retirement of Anthony Kennedy is Chief Justice John Roberts. While he still adheres to the Constitution on most big issues, he has notably sided against conservatives on a number of lesser-known cases as well as his egregious decisions on Obamacare, Arizona’s immigration law, and blaming banks for failing blue cities. In addition, he views himself as the guardian of the high court’s institutional integrity and doesn’t want to be seen as shifting the court too far in any direction. The problem is that the court has moved so far to the left on so many issues in recent years, as Scalia warned at the end of his life, and the many lower courts are more radical than ever before. As such, the Supreme Court, in order to return to the Constitution, is going to have to move abruptly in a different direction from the rest of the legal system.
Will John Roberts become the new swing vote with Kennedy’s seat flipped to the right?
There will likely be a wide gulf between cases pertaining to new anti-constitutional jurisprudence percolating in the lower courts and cases that would implicate long-standing anti-constitutional theory. On the former, I believe Roberts will likely remain with conservatives. Therefore, having another reliable vote will give us a 5-4 majority to shut down the shenanigans in the lower courts – at least gradually. But on questions of overturning Roe and Obergefell and other long-standing, bad anti-constitutional precedent that the Left has successfully enshrined into civil rights and the 14th Amendment, I have a hard time believing Roberts consider overturning these precedents.
Four is also a magical number on SCOTUS
Part of conservative frustration with the Supreme Court is that the justices have been slow to reverse some of these off-the-wall opinions from lower courts on critical policy issues. It takes four members willing to grant an appeal in order to consider a case. Clearly, the denial of such appeals in many important cases related to election integrity laws and driver’s licenses for illegals demonstrates that not only Kennedy but also Roberts was unwilling to take up those cases. Again, this is part of his philosophy of trying to avoid the appearance of an activist court. But it takes an activist Supreme Court to actively undo the activist lower courts, who should never officiously intervene in so many of these issues to begin with. It’s not activism to shut down unlawful activism.
This is why a new justice is so important. We will now have four votes to consider these cases without Roberts. And Roberts has enough respect for the Constitution that he’d be hard-pressed to go along with new revolutionary ideas from lower courts, even if he is reluctant to initially take up the cases.
I see a lot of potential for progress on this front on the issues of guns, religious liberty, and codifying the Rainbow Jihad into Title XII of the Civil Rights Act.
On guns, Thomas and Scalia have written sharp dissents from the denial of certiorari in cases where lower courts have essentially sided with the dissent rather than majority opinion in Heller. Alito hasn’t signed those dissents, but he wrote a concurrence in Caetano v. Massachusetts (2016) warning that the court was posing “a grave threat to the fundamental right of self-defense.” Another staunch conservative on the court would likely give conservatives the four votes to finally take up cases like right-to-carry and so-called assault weapons bans.
On religious liberty, Roberts himself has been solid and wrote a dissent in the denial of cert in the Stormans case where a pharmacist was forced to carry all forms of abortifacients. At the time, Scalia’s seat had not been filled and we had only three votes for cert. Now with Gorsuch and a new conservative, we should have five justices who easily oppose the notion that the rainbow coalition is a protected class against conscience rights.
Ditto for Title XII cases and transgenderism. Even if Roberts is reluctant to expeditiously overturn the many circuits that are now codifying it, four conservatives who can force the granting of an appeal will likely get us a win.
There is also a lot of potential to finally fix the court’s incoherent Establishment Clause jurisprudence and reverse the lower courts on banning God and prayer from the public square.
This is why it’s so important to ensure that the nominee doesn’t believe the Supreme Court is supreme to the other branches of government but believes it is absolutely supreme to the lower courts. Those vetting the nominee must be certain that he will aggressively swat down these revolutionary lower court interventions, particularly on immigration.
In the long run, we will only return to the Constitution if we end judicial supremacy
On long-standing anti-constitutional precedent, we really only know Clarence Thomas as an across-the-board originalist who also has the boldness to overturn anything he deems non-compliant with the Constitution. Alito will be good on many issues, but not all. Gorsuch is still something of a blank slate, but he definitely has boldness on many issues. However, I’d eat my hat if Roberts is willing to boldly overturn long-standing precedent in 14th Amendment cases.
More broadly, we must remember that the Left, given its control of the legal culture, always has a perpetual first and goal at our one-yard line. The capacity of a good judge to do good is nowhere near the capacity of a bad judge to do bad. Leftist judges have no problem codifying the Democrat Party platform into the Constitution, while conservative judges would rightfully never do so for the Republican Party.
Also, a lower court judge can always be more progressive than precedent but never less progressive. Even conservative lower court justices feel bound by bad precedent, and even many of the best Supreme Court justices do as well, to a point. As Thomas recently implied in his dissent from denial of cert in a gun case, no lower court judge can get away with adulterating Roe and Obergefell the way they twist and ignore Heller. Thus, the notion that we are just a few months away from a return to ubiquitous constitutional nirvana is a myth, even though the vacancy is still a very positive opportunity.
The only way we will see across-the-board change in the judiciary is if Ginsburg and/or Breyer retires under Trump and with a GOP Senate. That is definitely a possibility, but were that to happen, the Democrats would suddenly come to our point of view that the courts do not have a monopoly on constitutional interpretation but a co-equal responsibility in uphold it, along with the weakest mechanism to enforce it. They would suddenly agree with Abraham Lincoln – that when a court is trying to establish precedent on broad policies, the other branches and the states should push back when they disagree in order to uphold the Constitution. But they don’t believe in the Constitution. This newfound respect for co-equal branches and constitutional interpretation would last no longer than the conservative majority on the court.
Justice Robert Jackson famously warned that even the Bill of Rights must not be converted into “a suicide pact.” Most certainly, the federal judiciary, which is absolutely not synonymous with the Constitution, must not be converted into a suicide pact. For if all we have left in our republic is the judiciary, then we have no republic at all.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.