Famous last words, NeverTrumpers.
With the retirement of Associate Justice Anthony Kennedy—the Reagan Administration’s third choice to fill the empty seat of Associate Justice Lewis Powell, remember—President Trump has the opportunity to reshape the Supreme Court into a decidedly more originalist, textualist institution, thus fulfilling a core promise of his 2016 campaign: to appoint judges “in the mold of Antonin Scalia.”
Republicans need to be ready for a vicious torrent of opposition to whomever President Trump nominates. (The final four are Judges Amy Coney Barrett, Thomas M. Hardiman, Brett M. Kavanaugh, and Raymond M. Kethledge.) They will need spines of the stiffest sort to resist the deafening howls from the activist-created crowds, social media campaigns, and morally hectoring op-eds and editorials, all of which will urge them to refrain from voting “Yea.” It would not be hyperbole to say that this confirmation fight will at least be on par with—if not outright exceed—the nastiness of the Bork hearings that the country had the misfortune to endure over three decades ago.
The Left, predictably, has gone apoplectic. They have cursed Kennedy to the heavens they don’t believe in. They have called for Democrats to “pack the court” once they return to power. They have insisted, in much loonier fashion (if that is possible!), that the new justice will unleash a parade of horribles: “Abortion illegal; doctors prosecuted; gay people barred from restaurants, hotels, stores; African-Americans out of elite schools; gun control banned in 50 states; the end of regulatory state.” They have made silly claims on live TV like the “Supreme Court is the crown jewel of our democracy.” (It isn’t the crown jewel, and we aren’t a democracy.) And they have unleashed a volley of preemptive assaults—ranging from the sexist to the religiously illiterate to the plainly-panicked-about-abortion—against at least one frontrunning potential nominee who’s popular with grassroots social conservatives and Christians and terrifies them: Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals and Notre Dame Law School.
To that last: It’s been amazing to watch the media-Democrat complex spring into action, all at once, coordinated, to defend Roe v. Wade (1973) and its most infamous progeny, Planned Parenthood v. Casey (1992). It’s a species of a bad category of argument the Left has been making since Kennedy announced his retirement: that certain decisions are “superprecedents” and so are simply untouchable.
Except that’s nonsense. Bad or incorrect decisions—that is, ones that are contrary to the Constitution’s text, logic, structure, history, (original public) meaning, and purpose—ought to be overturned by the Supreme Court (though not by lower courts). Perhaps not immediately upon having the votes to do so and not all at once, but for the Supreme Court to allow them to stand on par with the real, actual, ratified, and amended Constitution is to do violence—even if only passive violence—to the judicial craft, sound jurisprudence, faithful interpretation, and our constitutional republic as a whole. In other words, stare decisis is not absolute—something that someone no less than Chief Justice John Roberts has acknowledged.
Not only is the argument that stare decisis should stand before the Constitution itself nonsense, it’s a cynical, politically motivated power play. Would Democrats say the same for District of Columbia v. Heller (2008) or Citizens United v. FEC (2010) or any number of other decisions? Of course not; they want those overturned yesterday. (In effect, for the “living Constitution” Left, all precedent is equal, sure, but some precedent is obviously more equal than others.)
Not content to poison the abortion jurisprudence well ahead even of the announcement by the White House of a nominee, the Democrats also leapt into the confirmation process fray, claiming that the “McConnell rule”—that no Supreme Court justices should be confirmed in an election year—applies to the Kennedy vacancy. Here, they are simply playing fast and loose with the facts. Senate Majority Leader Mitch McConnell (R-Ky.) never said it applied in election years, generally, but only presidential election years, specifically—and that is indeed what happened. Judge Merrick Garland was blocked by Senate Republicans in a presidential election year. The so-called McConnell rule has no relevance in a midterm election cycle (even Politifact agrees), and the Democrats lack the power or votes to make it relevant via parliamentary chicanery.
Further, they’ve claimed that Supreme Court justices should be replaced only by those who are ideologically similar to them. Why this should be the case—besides to preserve for Democrats the current, somewhat-favorable-to-them ideological composition of the court—is anyone’s guess. But let’s assume the proposition has merit. In what world was replacing Antonin “Mr. Originalism” Scalia with Merrick Garland an expression of that proposition? If Garland really were going to be Scalia 2.0, ask yourself: Why would President Obama have appointed him in the first place (was Obama a closet Scalia fan?), and why are Democrats so incensed that Neil “stolen seat” Gorsuch sits where Scalia once did?
To ask those questions is to answer them; that requirement is nothing more than naked politicking masquerading as “principle”; Garland was clearly going to be more like a Ginsburg than a Gorsuch and it’s impossible in good faith even to suggest otherwise.
This upcoming nomination is critical for the very simple reason that this is the chance for legal conservatives to control the court outright for the first time, arguably, since the start of the New Deal over 80 years ago. It is difficult to predict precisely what that would mean for the rule of law and the health of our nation, but it’s clear that we will be in a better position after Kennedy is replaced than we were while he occupied the court—or if, God forbid, a President Hillary Clinton had her one (or more!) picks.
Already, legal scholars on the political Left who have noted approvingly Justice Kennedy’s judicial supremacist worldview are finding it both attractive and necessary to embrace the practice of politics, and the rhetoric and persuasion it entails, rather than fleeing to the courts, to see the outcomes they desire become real. (Is their newfound appreciation for politics borne out of their having been locked out power at the federal courts, similar to their newfound appreciation for federalism after Hillary Clinton’s loss? Sure. But we have to start somewhere and, perhaps, in practicing politics, even if only grudgingly, they will come to one day truly embrace politics—which would help us all.)
An originalist Supreme Court provides another benefit worth considering: a certain kind of psychic relief, an effect of jurisprudential reliability, predictability, and groundedness in the Constitution. Non-originalist Supreme Courts have frequently found new “rights” within “penumbras formed by emanations”; the country never knows when the next radical decision will be handed down, what it will consist in, or what will result from it.
This more restrained—i.e., textually based—Supreme Court, a court that doesn’t aggrandize itself beyond the country’s true sovereigns, “We the People,” will allow for real self-governance to flourish once more.
For at least the next generation, we will no longer need to worry that the entirety of our most fundamental law will turn on the whims of nine black-robed jurists because “We the People” will again be sovereign.
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