This year at the Supreme Court has been extremely boring so far. If we didn’t have lawless hyperactive lower courts engaging in a daily constitutional convention, that would actually be a good thing, as the judiciary should be a boring place with no input into political issues, which should be left up to the political branches. John Jay hated the court because it didn’t get to throw its weight around in politics. Unfortunately, with lower courts permanently altering the trajectory of our politics, culture, sovereignty, and even national security, the passivity of the Roberts court is a recipe for judicial hell.
Once we agree to legitimize judicial supremacy, we have lost our nation, regardless of the orientation of the Supreme Court. That was on full display at the high court on Monday. In a new trend where several members of the “conservative wing” of the court allow very consequential bad lower court rulings to stand, Justices Roberts and Kavanaugh refused to hear an appeal on the issue of forcing states to fund Planned Parenthood.
Five federal circuit courts created a right for Planned Parenthood to obtain state funding or for private citizens to sue the state for not giving them access to any provider they choose through Medicaid. Never mind that some of these same circuits believe an individual doesn’t have a Second Amendment right. They now believe there is a private right to sue states over termination of Medicaid contracts in federal court, a power never granted to them by Congress.
The sheer fact that the Sixth, Seventh, Ninth, Tenth, and even Fifth Circuits signed on to this insane idea demonstrates, as I’ve long warned, that almost all of the circuits are irremediably broken, and even two terms of Trump’s presidency will only change the margins. The Eighth Circuit was the only appeals court that sided with the state (Arkansas, in this case) against abortion funding. Such a circuit split on a vital issue concerning state powers would normally have triggered a review from the Supreme Court upon appeal. Yet on Monday, in the appeal from the Fifth and Tenth circuits, the Supreme Court denied certiorari to the states of Louisiana and Kansas respectively. Only Justices Thomas, Gorsuch, and Alito would have heard the case. It takes four justices to grant cert.
Thomas wrote an impassioned dissent from the denial of cert because this is a dangerous trend we are seeing from his colleagues. We are seeing it with immigration, public prayer, global warming cases, and election law, where lower courts are either violating precedent or all sorts of legal norms, and Roberts and one or two others of the conservative wing join with the Left to allow the lower court insanity to continue.
Until recently, Roberts hid behind the fact that there weren’t any circuit splits in many contentious cases. After all, the Left shops its cases so effectively that it often wins every time. But now we are seeing, as with the public prayer case, that even when there is a circuit split, Roberts is going out of his way to avoid ruling on these cases. The problem is, as Thomas notes, this allows the lower courts to permanently alter the political trajectory of state governments.
Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers.
Thus, anything conservatives ever want to accomplish, even if they win elections, is essentially dead on arrival because of lower court judges allowed to reign supreme. The legal profession erroneously believes that lower courts can grant standing to anyone so they can babysit the other branches on clear political questions, yet the Supreme Court refuses to babysit their own quite inferior courts.
Even when the Supreme Court is forced to take up a case and overturn it, it never does so categorically, as Thomas does. This allows the lower courts and their allies to come back for more and shut down our sovereignty, election law, and fiscal and cultural decisions in 100 other ways.
Absent wholesale judicial reform, if we continue to legitimize judicial supremacy, even with “the right sort of judges,” we should just abolish the other two branches and the state governments in favor of the robed masters.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.