Conservatives who think we can win the judicial supremacy game simply by appointing “better judges” need to remember just one thing: The ability of a good judge to do good is nowhere near the ability of a bad judge to do bad.
On Thursday, the much-vaunted conservative Fifth Circuit Court of Appeals upheld an injunction by radical liberal District Judge Carlton Reeves on Mississippi’s law banning abortion when a fetal heartbeat can be detected.
“If a ban on abortion after 15 weeks is unconstitutional, then it follows that a ban on abortion at an earlier stage of pregnancy is also unconstitutional,” wrote the three-judge panel Thursday in a per curium decision.
In December, the court upheld a district judge injunction against a similar law banning abortions after 15 weeks. This time the law being blocked is SB 2116, which bans abortions when a heartbeat is detected, which is usually any time between 6 and 12 weeks of pregnancy.
Conservatives who were hoping this injunction was only the result of a radical judge like Reeves will be sorely disappointed. Reeves, as a sitting judge, gave a high-profile speech last year comparing Trump to the KKK. However, now conservatives must contend with even a right-leaning appeals court siding with him.
Although two of the judges, Carolyn King and Gregg Costa, are Democrat appointees, a rare anomaly for a Fifth Circuit panel, the third judge who signed onto the opinion, Jim Ho, is considered one of the most conservative on the federal bench. This should demonstrate to conservatives, once and for all, that even the most conservative judges will never push back against liberal Supreme Court precedent the same way liberal judges ignore Supreme Court precedent on immigration or other issues.
The reality is that, once we assume that lower courts are bound by Roe and Casey, it’s impossible to say that abortion bans this early in pregnancy are permitted under that case law. Thus, even judges like Jim Ho, who undoubtedly disagree with Roe, will never deviate from precedent.
Well, what about a “conservative” Supreme Court? Wouldn’t conservative SCOTUS justices be fine with overturning Roe and Casey? The problem here is that conservatives will never even get a circuit split on this issue in order for a supposedly conservative Supreme Court to overturn it. Absent at least one circuit opinion siding with the red states on abortion laws, it’s very likely that no member of the high court other than Clarence Thomas would take the appeal from states like Mississippi. We see that even when there is a circuit split, some of the other GOP SCOTUS appointees are often reluctant to take up a critical case to overturn lower courts, much less when those decisions are built on past Supreme Court precedent.
This huge disparity between conservative and liberal lower court judges vividly shows why the judicial system is a one-way ratchet to the left and a dead-end street for conservatives the minute we agree to the premise that federal judges have the final say on political issues – and that court decisions are self-executing on the country and universally binding against the other branches.
Let’s contrast abortion with gay marriage, for an example of this dichotomy. Everyone is familiar with the 2015 Obergefell decision that created a constitutional right, forcing states to recognize same-sex relationships as marriages. However, few are familiar with the fact that in 1972, the court ruled unanimously against gay marriage in Baker v. Nelson. To my knowledge, Obergefell was the first time the Supreme Court ever reversed a prior unanimous decision. How can this be done? Well, liberal justices, unlike most conservative ones, are always willing to overturn long-standing precedent they disagree with.
But there’s a more peculiar question. How did we get to Obergefell, and how was the case teed up for the Supreme Court? How were the lower courts not bound by Baker? Well, nearly every single lower court ruled on the side of gay marriage. They couldn’t care less about precedent they disagree with, even if it’s from the Supreme Court. In fact, if not for the Sixth Circuit ruling with the state marriage laws, there wouldn’t have been even a single court upholding Supreme Court precedent!
Liberal lower court judges do this every day by offering rights and standing to illegal aliens despite the most uninterrupted chain of case law, known as the “plenary power doctrine,” that immigration and border decisions must be left to the political branches. Lower courts are already pushing back against the Trump v. Hawaii decision from just two years ago.
Yet you will not find a single conservative lower court judge going against Roe, which was decided just one year after Baker. Precedent that liberal judges disagree with is regularly disregarded even at the lower court level, yet precedent that Republican judges might disagree with is usually respected, even by Supreme Court justices on an equal plane. This will ensure that bad precedent will never be reversed.
This is also why, to the extent we have agreed federal courts can veto laws in the abstract, the abortion laws from every state that tried them – Georgia, Kentucky, Louisiana, Missouri, Alabama, Mississippi, and Ohio – are now on hold. We’ve seen how most of the non-Thomas justices on the Supreme Court are reluctant to take an appeal without a split circuit, even to defend SCOTUS precedent, such as with right-to-carry and assault weapons bans cases in light of the Heller decision. They most certainly will not take an appeal from these states to overturn Roe.
To that end, anyone who really wants to protect life, but is selling you a bill of goods that the courts, which caused this problem to begin with, will suddenly solve it, is pitching you a scam. The real solution is to assert, as Lincoln did, that each branch of government gets to use its own powers in accordance with the way it interprets the Constitution. Republicans should promise to use the other two branches to block enforcement of these court opinions the same way the court tries to block the laws’ implementation. We have three co-equal branches of government that go around in a circle, not one branch that stands atop the pyramid of governance.
As Lincoln reminded everybody, the judiciary did not have the exclusive right to declare black Americans not human beings. They ought not to have that right to declare unborn babies nothing but fetal tissue.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.