Battle for the courts part 1: Major problem requires major reform

· November 14, 2016  
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U.S. Supreme Court
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This is the first of a two-part series. View “Battle for the courts part 2: 8 ways Congress can show who’s BOSS.”

Neither the Founding generation nor their children nor their children’s children, right on down to our grandparents’ generation, were so passive about their role as republican citizens. They would not have accepted-did not accept-being told that a lawyerly elite had charge of the Constitution, and they would have been incredulous if told (as we are often told today) that the main reason to worry about who becomes president is that the winner will control judicial appointments. Something would have gone terribly wrong, they believed, if an unelected judiciary were being given that kind of importance and deference. Perhaps such a country could still be called democratic, but it would no longer be the kind of democracy Americans had fought and died and struggled to create.
Larry D. Kramer, former Dean of Stanford Law School [1]

According to exit polls, 75% of Trump voters ranked the future of the Supreme Court as an important factor in their vote. So, now that Republicans won this election, does it mean the courts are automatically fixed and we are out of the danger zone? Do we just fill Scalia’s seat with an originalist and live happily ever after?

Not so fast.

Throughout the 2016 presidential campaign, there was a ubiquitous talking point among conservatives that the Supreme Court is deadlocked 4-4.The pundit class said that this election would determine the future of our entire society not because of who became president, but primarily because of the second degree effect of his ability to make the next Supreme Court appointment. These same talking heads seem to think that as long as Trump fills Scalia’s seat, we are on our way to the promised land.

While I certainly applaud the focus on picking originalist judges or blocking bad judges as part of the solution, the absence of any education about the role of the court in the first place obfuscates two important facts: 1) the federal judiciary is not deadlocked; it is already lost, and 2) Congress sits atop the judiciary, not the other way around. Congress can rein in the courts and completely obliterate the lower courts. Any debate over the courts must center around the future of the entire judiciary and its role in our society — not just the question of filling a vacancy. Republicans must harness this once-in-a-generation opportunity — with control of the federal government and a record number of state governments — to finally solve the growing constitutional crisis of judicial supremacy.


Why the federal judiciary is inexorably against us on important issues

In addition to the long-form discussion in my book, I posted a column several months ago detailing 12 reasons why the federal judiciary is irremediably broken, irrespective of who won this election. Without rehashing the same points, there are a couple of important observations that are worth raising in light of the new opportunity:

1. Anthony Kennedy

It is downright offensive to see so many conservatives count Anthony Kennedy among the originalists on a “deadlocked” court. In case some conservatives haven’t noticed, Kennedy did redefine the building block of all civilization last year. Between his decisions on abortion, marriage, religious liberty, fundamental rights, the 14th Amendment, global warming regulations, and affirmative action — just to name a few — he is already in lockstep with the far-left on most of the consequential issues of our time. The transgender equivalent of Obergefell is already in the Supreme Court and Kennedy has made it clear where he stands on “the right to define and express their identity.” [2]

Right before Scalia passed away, he observed that “the whole time I have been on my court, it has been a liberal court.” Thanks to Anthony Kennedy and years’ worth of post-constitutional precedent accepted even by conservative justices, the courts have already remade America. Even most conservative jurists are reluctant to roll back this precedent, much less liberals like Kennedy. This is particularly important in light of Trump’s comments suggesting that “gay marriage is the law of the land” and settled law by the Supreme Court.

If we are going to submit to judicial supremacy, albeit focus only on winning “the swing vote” on the court, we have already lost it on most issues. The Left has a 5-3 majority. Filling Scalia’s seat would still put us at the losing end of 5-4 on most important social issues, even after expending so much political capital on filling that one seat. Sure, there are some issues, mainly of lesser importance, where Kennedy still hasn’t “gone there yet,” but they pale in comparison to issues dealing with fundamental rights and the future of our civilization. Also, he is dramatically shifting left every term. And it is certainly not a given that Kennedy or any of the other liberals would retire under Trump’s watch, unless someone passes away.

2. The Lower Courts

Even court watchers keep forgetting that most cases are decided by the lower courts, and the lower courts make the Supreme Court justices look like the Founding Fathers. We’ve proudly covered the lower court tyranny in this column every week for the past several months, and by now, any reader of Conservative Review has a clear sense of why the lower courts are irredeemable. Even with a Republican president and Senate, it would take years, possibly more than a decade, to flush out the lower courts, and meanwhile, most of the critical issues will have gone through the system within months. Few circuits are likely to swing back in the coming years, and most liberals will refuse to retire under Trump’s tenure.

The only circuits where some semblance of originalism is evident is in the Fifth and Eighth Circuits, yet we couldn’t get voter ID past the Fifth. The Eight Circuit was the only appeals court that sided with conservatives on the most foundational right of religious liberty and conscience in fight over the Obamacare contraception mandate.[3] Ironically, it’s the lower courts that are doing us more harm than SCOTUS. Conservatives are often the ones bringing appeals to the Supreme Court to overturn the lower courts. It’s just that they decline to act. Our Constitution, states, and fundamental rights will be crushed by the lower courts by the time we’d succeed in fundamentally altering them, which in itself, has been an elusive goal.

3. John Roberts is unreliable

On top of the liberal Anthony Kennedy is the unreliable and calculating Chief Justice John Roberts. It’s not just the Obamacare cases where he did us in. Anyone who has watched Roberts carefully would notice that he has signed onto some other very consequential bad decisions (gutting Arizona immigration law, or redefining Eight Amendment, for example). More importantly, Roberts has refused to grant cert to appeals from bad lower court decisions. Clarence Thomas has called him out in several cases (see here and here for examples).

We can also glean from Roberts’ reluctance to issue injunctions against some lower court rulings that he believes in a “modest” Supreme Court in all the wrong ways, the same mentality that drove him to preserve Obamacare.

Roberts doesn’t want the Court to make waves in any direction. He would have been a good chief justice 100 years ago predating the coup against our Constitution. But given that the Left has created decades of post-constitutional precedent — particularly as it relates to the 14th Amendment and statutory construction in general, in conjunction with a capricious bench of lower courts — you need a Supreme Court to aggressively rein them in and reverse the judicial tyranny of the past and current courts. Roberts is not that man. He is very much influenced by the politics of the outcome in a given case and will be very reluctant to roll back Fourteenth Amendment precedent, however erroneous and harmful it is, especially when every circuit sides with the Left.

Finally, it’s important to remember that even in the best case scenario — that Trump appoints a Clarence Thomas 2.0 to replace Scalia and then has the ability to appoint another originalist in the event one of the liberals retires or dies — guess who will become the new swing vote? John Roberts. This is what always happens. The judiciary has been an elusive game of drinking coffee with a fork for conservatives. We will never win that game once we agree to the premise of judicial supremacy over Congress and the states and that there is nothing that can be done about it other than appointing better judges or amending the Constitution.


Raising expectations and legitimizing judicial supremacy without results

While everyone widely expects Trump to have a mandate to appoint a true originalist, it will not come without a fight. Republicans will have to either abolish the filibuster or use procedural strong-arm tactics to confirm someone the Left truly fears. Then what happens when Republicans get everything they want and still lose almost every major case thanks to Kennedy and the lower courts?

Republicans would have legitimized the specter of the courts as the final arbiter of our society by so frantically trying to fill the seat and then still lose on the critical cases anyway. Democrats and the media will say, “look, you guys got what you wanted, there is no reason to complain about the courts.”

I’m not saying conservatives shouldn’t fight to the death for an impeccable originalist, but that must be only a part of the strategy and public messaging. They should engage in a relentless education campaign on the role of the courts and the role of Congress in regulating the jurisdiction of the Supreme Court, completely defining the role and jurisdiction of the lower federal courts, and defunding the executive branch from enforcing unconstitutional court rulings.

In part two of this series, I plan to explore some ways Congress can shift power back from the courts to the Legislative Branch of government and to the states. That way we will never be one Supreme Court justice or opinion — indeed even one lower court decision — away from losing our Constitution, national and state sovereignty, and fundamental rights.

[1] The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 228.

[2] Obergefell 576 US at 1–2: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

[3] Sharpe Holdings, Inc. v. United States Department of Health and Human Services, 801 F. 3d 927 (8th Cir. 2015).

Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.