The Supreme Court has jurisdiction to overturn the conviction of a rapist and murderer from 1986 under the claim that the jury selection was “racist,” even though all of Georgia’s courts found no wrongdoing. At the same time, the high court has no jurisdiction to hear the grievance of the Virginia congressional delegation after lower federal courts created a judicial gerrymander of their districts in the middle of an election year. That is the gist of what emanated from the high bench yesterday when juxtaposing two disparate cases.
The common denominator is that conservatives can only be screwed over by the courts, but can never count on them to redress grievances created by the same federal court system. Which is why in my upcoming book, I propose stripping the courts of their ill-gotten power and returning it to Congress and the state legislatures.
The first big decision on Monday (Foster v. Chatman) involved an individual who raped, beat and killed a woman in Georgia 30 years ago. Timothy Foster confessed to the murder at the time and was sentenced to capital punishment. At the time, Foster’s attorneys claimed that the state prosecutors used their prerogative to strike potential jurors from the selection pool to prevent all blacks from serving on the jury. In the ensuing few years, every state court upheld the conviction and found no evidence that the prosecutors abused their power to exercise peremptory strikes (strikes without a given reason). The state of Georgia allows the prosecution 10 such strikes. In 1989, the Supreme Court refused to hear an appeal to overturn the state courts.
Finally, he succeeded in getting this case before the Supreme Court. Writing for the majority opinion, John Roberts invalidated this 30-year conviction and reversed Georgia’s Supreme Court decision based on details that are now stone cold. As Justice Thomas, the lone dissenter observed, “[T]his disposition is ordinarily a question of state law that this Court is powerless to review.” Thomas, therefore, doubted that there was even an implication of federal law at question in this case.
Thomas concluded as follows:
Today, without first seeking clarification from Georgia’s highest court that it decided a federal question, the Court affords a death-row inmate another opportunity to re-litigate his long-final conviction. In few other circumstances could I imagine the Court spilling so much ink over a fact bound claim arising from a state post-conviction proceeding. It was the trial court that observed the venire-men firsthand and heard them answer the prosecution’s questions, and its evaluation of the prosecution’s credibility on this point is certainly far better than this Court’s nearly 30 years later.
Even John Marshall, the original advocate for a strong federal judiciary, would have been appalled by such an affront to a state judiciary. He promised at the Virginia Ratification Convention that the federal courts would never crush state courts and infringe upon their adjudication of state law. Yet, it’s quite evident that in the modern legal profession, as long as plaintiffs can shout racism in a crowded theater, our constitutional system of governance goes out the window.
Federal Judiciary Imposes Drive-By Liberal Gerrymander on Virginia Republicans
Now let’s juxtapose this to the Virginia redistricting case (Wittman v. Personhuballah). As I’ve noted before, while both parties engage in unfair gerrymandering, the problem needs to be remedied by the people in the respective states, not the courts. By granting the federal courts full authority over a state issue, the courts are engaging in even worse gerrymandering, using specious disparate impact theories, and doing so in a one-sided way. That is why so many GOP election maps have been overturned, yet in my home state of Maryland, which has the worst Democratic gerrymander in the country, the new map is still standing.
The federal courts redrew the maps of Virginia and North Carolina in middle of the election, disenfranchising a number of voters and candidates in an even worse fashion than the state legislatures. As is the case with everything decided in the judiciary, under the guise of taking race out of redistricting, the courts redraw maps based solely on race, albeit in a way that always benefits Democrats. In Virginia, at least three GOP members’ districts were made more Democratic due to the lower court’s edict, and one member, Rep. Randy Forbes (R-VA), had to run in a different district because his old district became unwinnable.
On Monday, the court unanimously ruled that the members lacked standing to bring the case before the high court and therefore declined to rule on the merits of the case. I don’t necessarily believe the court was wrong based on precedent determining the threshold of pending grievances needed to obtain standing, especially after Randy Forbes already made the decision to run in another district. But step back and ponder the outcome and the one-directional dead end the courts have become for conservatives. These members were only asking the Supreme Court to intervene because a federal district court messed them over and illegally protruded into state matters by siding with one political outcome of gerrymandering (always to the Left’s advantage). Now, they lack any standing to challenge that decision and weren’t able to find anyone with standing in time for this election.
Hence, my juxtaposition with the Foster case. A man who confessed to murder can get the Supreme Court to overturn the entire law enforcement apparatus and state judiciary of Georgia 30 years later, but members of Congress cannot be afforded standing to stop the federal judiciary’s redrawing of their districts. Obviously, the nature of standing between these two cases is apples and oranges, but the broader point is that conservatives are almost always on the losing side of the judiciary.
My observation obviously doesn’t apply to Justice Thomas who dissented in the Fostercase. But nonetheless, this is yet another example why conservatives must not rely on “appointing good judges” and further legitimizing the courts; rather they should work with Congress to strip the courts of their ill-gotten power over fundamental political issues, such as abortion, marriage, redistricting, and immigration. Conservatives will never win the judiciary game because the entire legal profession is skewed against us. Even if Trump follows through with his promise to select justices from his public list, the way the legal game is played we are on defense 95 percent of the time. The Left has a legal apparatus to challenge every conservative-inspired law or executive action by a state and always finds a way to win standing before the court. Our side, on the other hand, lacks that ability and there is always a reason we lose on standing.
Just consider how long it took for our side to get enough gun cases before the courts simply to uphold the self-evident and unalienable right to self-defense in the Heller case. Now consider how quickly the Left got the transgender issue into the Fourth Circuit, how quickly they overturned the marriage laws, and how swiftly they challenge every single deportation or state immigration enforcement law. This is why appointing good judges—to the extent they really remain originalists throughout their tenure and to the extent they are actually willing to overturn bad anti-constitutional precedent—is never enough to counteract the negative energy from the bad judges and the broader legal profession. The Left simply has more at-bats than we do, and nothing is going to remedy the broader legal profession in the coming years. At this point, it’s better to pull the rug out from under the judicial game and return to the Constitution.
Sure, we should select the best judges to the Supreme Court and to the lower courts when we have the opportunity. But in the long run it’s not worth expending all our political capital trying to fix the irremediably broken judiciary. We should be expending our political capital on restructuring the judiciary in accord with its original role.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.