Harold Hutchison / June 23, 2020

Don’t Give Up on SCOTUS

Recent disappointments notwithstanding, voting for the Court in November is still key.

After a couple of disappointing rulings — and punting nearly a dozen Second Amendment cases — some are wondering if it’s time to give up on the Supreme Court. This would be a huge mistake. The very nature of the High Court, designed by the Founders to be largely independent of political trends, means it takes a lot of time to turn things around.

Let’s review the state of the Court. We have four justices who can reliably be counted on to vote for a leftist outcome, four who can reliably be considered textualist and/or originalist (Neil Gorsuch’s recent travesty notwithstanding), and Chief Justice Roberts in the middle (though Roberts is more conservative as a swing vote than was Anthony Kennedy). Roberts, though, as chief justice, also tends to be very defensive of the Supreme Court as an institution. That has, ironically, frequently led to ill-conceived rulings that ended up damaging the Court’s reputation rather than strengthening it.

The fact is, the Supreme Court is one of many institutions unmoored from the Founders’ intent. The Left has consistently used it as a combination of a super-legislature and a quasi-constitutional convention. Reversing that has taken time, largely because nominees like Sandra Day O'Connor, David Souter, and Anthony Kennedy didn’t turn out so well for the Republican presidents who nominated them. They ended up as swing votes at best. Souter, a George H.W. Bush appointee, was a horrendous mistake.

Worse yet, a lot of talented textualists have thought twice about seeking a seat on the Court ever since Senate Democrats began turning Republican confirmations into a blood sport. Robert Bork, of course, is the foremost example of a superb jurist being defeated by grotesque and utterly dishonest leftist attacks. Even those who managed to weather the storm have ended up vilified and slandered. Ask Brett Kavanaugh.

One thing President Donald Trump has delivered on is his commitment to appoint good judges. But just as leftists escalated their attacks against past nominees, they have done so with many of Trump’s. Today, many leftists are open about their desire to pack the Court, supposedly in response to “politicization” of the Court. Of course, such a successful packing — which could be perpetrated only by a Democrat president and Senate — could reverse decisions like Citizens United, NIFLA v. Becerra, and Heller.

When it comes down to it, the real problem America faces isn’t that the conservative legal movement has failed. The problem is that its job remains half-done. The fact is, we need more originalist and textualist judges and justices on the bench. Over the short term, two such justices could replace Ruth Bader Ginsburg and Stephen Breyer, but to have a good chance of accomplishing that, President Trump must be reelected, and the Republicans need to hold the Senate.

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