“To say that the departments of our government are co-ordinate is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided.” ~Edward Bates, attorney general under President Lincoln
Sen. Chuck Schumer might not realize it, but he inadvertently stumbled across the truth about the Supreme Court. Rather than focusing on the catfight of his war of words against Justices Gorsuch and Kavanaugh, Republicans would be wise to call his bluff on concern over the power of the court and challenge him to join in a bipartisan effort to reduce the runaway powers of the judiciary.
Obviously, if Schumer had a gracious bone in his body, he would simply apologize for his remarks yesterday outside the Supreme Court building saying that Gorsuch and Kavanaugh “will pay the price” for any potential decision they make on abortion cases. In today’s political tinderbox, whether he meant it or not, his comments certainly sounded like a direct threat against the justices.
However, we should all take a step back and ponder why the atmosphere around Supreme Court politics has become so charged in recent years and what can be done to reverse the trend. Democrats are now providing us with the perfect opportunity.
Given how politics has become a blood sport, it’s no surprise that Supreme Court nominations, and now the lead-up to big court decisions, have become such a blood fest. Both parties have wrongly elevated the judiciary to the status of a tribunal super-legislature that can decide every single political and social question with finality. Schumer is 100 percent correct that courts should not decide the abortion issue. Conservatives should call his bluff and offer to take all abortion questions away from the judiciary, a power Congress can use over the courts any day of the week, and let state legislatures decide the issue.
Schumer is forgetting how this latest abortion case even got to the courts. It’s not a potential 5-4 “conservative majority” on the Supreme Court that is wading into the abortion issue. It’s lower courts that continue getting involved in this and other political issues that should be left to the political branches of states or the federal government. How about we keep federal judges out of overtly political issues altogether, and then Schumer won’t have to worry about the coming apocalypse of a supposedly conservative Supreme Court?
Here’s another irony lost on Schumer, one that conservatives should easily recognize. The Louisiana case before the Supreme Court right now, June Medical Services LLC v. Russo, actually demonstrates that Republican-appointed justices, aside from Clarence Thomas and maybe one other, will never overturn even recent expansions for abortion “rights,” much less the foundation of Roe and Casey.
The current case deals with Louisiana’s law requiring that abortion providers have admitting privileges at nearby hospitals within 30 miles of the abortion clinic. If you listened to the premise debated throughout the oral arguments on Wednesday, it was clear that the majority of the justices won’t even reverse the 2016 Hellerstedt decision, the ruling that states can’t “burden” abortion “rights” with certain health care regulations. The entire question they appeared to be debating was whether the Louisiana law could be justified under the Hellerstedt precedent.
As we’ve seen time and again, Roberts and Kavanaugh worship precedent, including even recent cases where Roberts dissented and Kennedy provided the fifth vote, as was the case in Hellerstedt. Once there is a majority behind an opinion, those two will almost always stick with the liberal precedent. Gorsuch and Alito are up in the air depending on the issue. Thomas is the only one who has made it clear he is always willing to reverse cases he believes were wrongly decided, even if they are 150 years old.
Here we are practically engaging in a civil war over the direction of the Supreme Court, when the only question is whether it will continue moving even further to the left or just maintain all of the liberal decisions it has promulgated until now. If Schumer is really concerned about this supposed right-wing court, let’s call his bluff and agree to limit the power of the judiciary altogether and stop it wielding such broad power over political issues.
Conservatives would be short-sighted not to turn the Democrats’ fear of a potential right-wing court into broad judicial reform. We only stand to benefit from keeping our political fights within the political branches.
For example, just yesterday, the Ninth Circuit finalized an injunction against Trump’s border policies, essentially demanding we bring in endless unvetted caravans during a time of global pandemic. Are we really to believe the courts have this power? If Democrats want to chant, “Keep your policies off my body,” shouldn’t we all chant to the Ninth Circuit, “Keep your policies off our sovereign borders”? It is our right to have a sovereign nation. What about a hashtag: “#OurRightOurDecision”?
Rather than spending the rest of the week feigning outrage over the attack on the much-vaunted “independent” judiciary, how about Republicans use this as the impetus for de-escalating the problem by de-emphasizing the power of the courts over the other branches?
Again, there is a kernel of truth to what the Democrats are saying. Republican judges shouldn’t have the final say over the most vital national questions. But neither should Democrat judges. In a republic, unelected courts don’t get to decide with finality broad political questions, stealing the sovereignty of the people, as Abraham Lincoln rightfully believed. That’s exactly why we need to make the courts boring again and keep both the lower courts and the Supreme Court out of political decisions.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.