2016 Election

Kennedy’s Departure Diminishes Supreme Court … And That’s a Good Thing


- June 29th, 2018
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Since the Earl Warren era, the Supreme Court has assumed enormous power over our politics, and this has become a significant obstacle to the constitutional design of Americans living as a self-governing people.  

Far more worrisome than “Russian interference,” which at most partially influenced the views of voters with many other sources of information, the Supreme Court routinely has interfered with American self-government, either undoing or forcing results at various levels of government in accordance with its idiosyncratic and elitist views.

The Court, of course, issues prolix opinions that obscure what it is actually doing, but consider its recent track record.

The Supreme Court’s Self-Appointed Role as Super Legislature

The Court undid California’s referendum on gay marriage after having earlier reversed Colorado’s referendum preventing gays from being added to the long list of “protected classes” in employment laws. Using the broad and vague mandates of “substantive due process” and “equal protection,” the Court simply decided the people were wrong and “irrational,” and Justice Kennedy authored opinions that accorded with the views of his friends and neighbors in Washington, D.C. In the process, the Court forbade the people of California and Colorado from undertaking the most quintessentially self-governing act for which the Constitution was designed: passing laws on controversial matters through a referendum.

This is merely an example. The Supreme Court has also second-guessed how wars are conducted, how schools are run, has allowed legislatures to enshrine the Ten Commandments while forbidding state courts from doing so, has created new rights while ignoring those enshrined in the Constitution itself, and generally assumed the role of “super legislature.”

In addressing salient social issues, the Supreme Court has functioned as something of a Delphic Oracle, divining hidden mysteries in the otherwise prosaic constitutional text that disallows historically permitted practices on immigration, the treatment of enemy prisoners, abortion, and much else where the Constitution’s text is either silent or agnostic.

While preempting legislative supremacy and the broad powers of the executive, the Court is, in fact, unrepresentative in all meaningful ways. It is not, of course, supposed to be a representative institution. It is supposed to be a technical and intellectual job, devoted to the analysis of laws in light of other laws and our general law in the form of the Constitution. But it hasn’t been that since the 1930s.

So, in that milieu, it should be, if not representative, at least faithful to and sympathetic with the American people. But far from being sympathetic, its progressivism has been hostile to the mass of people and their views, labeling them irrational and bigoted when they deviate from the very narrow consensus formed among the almost exclusively Ivy League pedigreed justices. The retiring Justice Kennedy mostly embraced this snobbish and busy-body ethos.

One might say this is mere sour grapes; that liberals like a more liberal Supreme Court that lets them do what they want to do, and that conservatives like the same thing in reverse. But the conservative judicial philosophy does not call for the Court to do very much. It is respectful of the states, of the Congress, of the Presidency, and, above all, the text of the Constitution itself. Such a philosophy deliberately renders the Court less important and less powerful than it is under the dominant, “progressive” philosophy of legal realism. The American design calls for an embrace of a jurisprudence, above all, of judicial minimalism, where the Supreme Court shows more reticence to reverse plebiscites than mere precedent.

What the Constitution Does (and What it Doesn’t)

There are, of course, limited aspects of the Constitution that address substantive matters. Free speech is protected, as are the rights of the criminally accused, the right to bear arms, and the right to be free from enslavement. But much is unsaid, and that is deliberate. As we ought to learn in high school civics, we have elections, and the elected legislature is supposed to make the laws and the elected executive branch is supposed to enforce them. Times and circumstances are always changing, so the laws should sometimes change with them, and whether representative, senator, or president, the people have the ultimate and final say.

The judiciary is given the limited and mostly technical task of interpreting these decisions by others in particular cases. Through the combination of judicial review (a controversial, but long settled function) and legal realism (a not-so-well-established and toxic development), the Supreme Court has, instead, arrogated to itself the task of pushing society in the right direction as defined by the consensus views of elites like themselves.  

This push had a certain amount of moral weight behind it when it was applied to civil rights. After all, the governing structures of the Deep South could not register the concerns and interests of blacks, because of their effective disenfranchisement. These states’ decisions, thus, were not particularly representative of “the people,” insofar as a great many were deliberately excluded from power. In addition, the federal government was authorized explicitly in the 13th and 14th Amendments to protect the rights of freed slaves and their descendants.

But even here, the Court’s impatience and self-regard was less effective and had less legitimacy than later legislative enactments like the Civil Rights and Voting Rights Acts enacted in the mid-1960s. Legislative reforms had the benefit of emerging from a political process, that is, by being an expression of the sovereignty and evolving views of “The People.” Progressive or otherwise, electoral outcomes at the very least can, unlike wayward Supreme Court decisions, be undone, corrected, or improved by an aroused electorate.  

Justice Kennedy’s Self-Empowering Role in the Middle Ground

Justice Kennedy, like Justice O’Connor, was something of what today is called a moderate. In other words, occasionally he reached the right conclusions, but more often, he was just the deciding vote. This gave him a great deal of personal power in a divided Court.  

As such, he was central to the developing “gay marriage” jurisprudence, which short-circuited the development of such rules (and limits) through legislatures. The left is probably right that this (and other anti-majoritarian rulings) shaped public opinion and pulled it beyond what might have happened using legislative means by themselves. But, at the same time, this approach generated significant backlash and resentment. These types of decisions have also made presidential elections, which should be about governance, instead into potential proxy fights on every social issue under the sun, when such issues otherwise could be resolved organically and diversely through political processes among the various states.

The Resistance, which cared little for the political will expressed by his election, is calling for bipartisanship and civility, now that President Trump is getting a second Supreme Court nomination. Sorry guys, you’ve had two years to show your bona fides and blew it, not least in the thorough-going contempt you’ve shown for the people who elected Trump.

The Court Thwarts America’s Conservative, Nationalist, and Populist Tendencies

Even prior to Trump, the elite has been frightened. Left to their own devices, the American people, especially away from the coasts, evince an outlook significantly more conservative, nationalist, and law-and-order-oriented than that toward which we are supposedly progressing. While Democrats and Republicans won and lost the presidency since Reagan for various reasons, this entire time, significantly more conservative Republican politicians dominated state legislatures and have tried to restrict abortion, gay marriage, expand gun rights, and push back against affirmative action. At the same time, the increasingly agitated electorate has called for changes to trade and affirmative action policy that both parties, particularly in Washington, D.C., have resisted through a bipartisan consensus.  

In response to this discontent, the left has responded derisively. It has doubled down on importing more left-leaning immigrants from the Third World to cancel out the persistent right-leaning instincts of the interior. It has instituted a thorough-going propaganda campaign in the schools, and now also in corporate America, to suppress these ideas and to render them declasse and, in more extreme cases, economic suicide. But, most of all, it has used the courts as the ace up its sleeve, striking down myriad laws that express the least hint of nationalism, social conservatism, or that they may be otherwise out of step with the views of the elite.

In spite of all this resistance, Trump won. This has made a great many people—including putative conservatives like George Will and Bill Kristol—demonstrate their bipartisan commitment to preventing Middle America from governing itself. While #NeverTrump is mostly an ideology of think-tank hacks and other denizens of the Swamp, it did make Trump’s victory more difficult, as he faced a two front war. Even so, he and these views prevailed. His mandate, above all, was to empower the forgotten people who do not benefit from, do not support, and never agreed to the various pretensions, prejudices, and platitudes that constitute elite opinion, which are expressed most dramatically by the Supreme Court.

To do this, Trump promised to control the borders and to prevent Americans from having their rights and powers as citizens debased by a deliberate policy of demographic reengineering. This is one area where legacy conservatism is flawed. It counsels a nearly religious high regard for the Constitution. And, while the Constitution undoubtedly is a valuable and worthy document, it is, with few exceptions, agnostic about political philosophy on the face of it. It is chiefly a set of procedures, similar to corporate governance documents, condominium declarations, and other charters by which people organize their affairs. It says who does what and when and how, but not very much about the substance of what is done. It presupposes a preexisting society, values, mores, and language—that is, a people. This is why who is and who isn’t allowed to be part of the country’s citizenry is critical, because the Constitution is neither a necessary, nor sufficient basis for good government. No one plucking it up and placing it somewhere else should expect, thereby, to witness the creation of a nation of  Madisons, Hamiltons, and Jays.

Second only to his promises on immigration, Trump emphasized the importance of the Supreme Court. Trump, undoubtedly, is not a constitutional scholar. But like most right of center people, he knows that the Court has obnoxiously substituted its own will for that of the people regarding important matters best resolved by the political process. He promised to appoint justices who are “pro life,” who “respect the Second Amendment,” and who respect the Constitution. The ascendency of these views—majority views—has been suppressed by the Supreme Court for over 40 years.

Consider this banner week at the Court. It upheld the (elected) President’s policy on banning immigrants from certain terror-prone countries, it upheld the rights of the government’s (elected) officials to control unelected bureaucrats, and it upheld the right of (elected) officials to determine electoral districts. Among its decisions that opposed elected bodies, they chiefly involved core First Amendment rights, including the Masterpiece Cakeshop decision. With the addition of Trump-appointee Neil Gorsuch, the Supreme Court has begun to restore the rights of the people in general to govern themselves. Another Supreme Court appointment (or two) would solidify this historically well-grounded American balance of the power of majorities and the rights of individuals.

Donald Trump’s presidency is, above all, about restoring the dignity due to the ordinary American. By diminishing the Supreme Court’s activist power and replacing Justice Kennedy with someone more akin to Justice Gorsuch, he will accomplish exactly that.   

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Photo credit:  Eric Thayer/Getty Images

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