To Secure Liberty, We Need a Court That Is Blind, Not Woke
Making the Supreme Court sufficiently “diverse” is not the right goal.
In a Bloomberg op-ed shortly after President Donald Trump announced the nomination of conservative Judge Amy Coney Barrett to replace the late leftist Justice Ruth Bader Ginsburg, the authors lamented that the composition of the Supreme Court “continues to look quite different than the rest of America in gender, race and religion as well as on certain key policy issues.”
They worry that with the addition of Barrett, “another conservative voice on a court that’s mostly white, male and Catholic,” the Court “may find itself out-of-step with the rest of the country.”
These criticisms expose the fundamental difference in how the political Left and Right view the judiciary. Conservatives ultimately don’t care if a Supreme Court justice is white, black, Hispanic, Asian, male, female, Protestant, Catholic, Jewish, Muslim, gay, straight, or anything else.
They care about one thing — originalism/textualism. Will this judge interpret the Constitution based on the written text, as understood and intended by the Founders who drafted it?
The Left, on the other hand, sees everything through an intersectionalist prism. Obsessed with identity politics, leftists couldn’t care less about the intent of the Founders in drafting that revered contract with America’s citizens. To them, sex/gender, race, sexual orientation, and gender “identity” are the primary lenses through which cases must be decided, with those at the top of the hierarchy of victimhood granted special dispensation under the law, regardless of the facts of the case or the text of the Constitution.
It was Sonia Sotomayor who once declared, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Never mind the deeply inherent racism, sexism, and bigotry that undergirds the idea that everyone with a certain skin color, or a uterus, must think alike.
It’s for this reason that progressives are apoplectic over President Trump’s audacity to exercise his constitutionally enumerated power to nominate a replacement to the Supreme Court.
With the addition of a white, conservative, originalist, and Catholic justice, progressives will suffer a devastating blow to their ability to achieve through the Court an agenda that has been rejected at the ballot box for decades.
They want a Court with unlimited power to dictate the lives of every citizen in a way that would horrify the men who drafted the Constitution.
The Bloomberg article compares the makeup of the Court with the makeup of the American population, noting that the Supreme Court is two-thirds male compared to a slight female majority overall, and 78% white compared to a 60% white U.S. population. They note the nation is nearly evenly divided among Democrats, Republicans, and independents, but the Court now has two-thirds of the justices appointed by Republicans (though somehow we doubt this would be a concern for them if the Court was two-thirds Democrat).
Of course, if these are our metrics, then any demographic representation below 11% (one of nine) would automatically be disqualified from a seat on the Court. Based on that, with Jews just 2% of the U.S. population, the late Justice Ginsburg should never have been confirmed. Likewise, neither Asians (5.6%) nor LGBT (4.5%) would be allowed on the Court, and Hispanics would be limited to just one justice.
Oh, and by the way, Barrett’s family is more diverse than top leftist institutions.
Noting that a Justice Barrett would shift the Court’s ideological balance to the right, the Bloomberg authors delve into political ideology, claiming the Court is out of step with the rest of America on abortion, the constitutionality of ObamaCare, and varying strains of LGBT rights.
On ObamaCare, they point to a 2017 law-review article in which Barrett criticized the John Roberts Court’s deeply flawed reasoning and politically motivated opinion in upholding ObamaCare. She said, correctly, that the ruling stretched the text of the law “beyond its plausible meaning.”
The authors feel the Court, despite a conservative leaning, would be unlikely to reverse the previous same-sex marriage ruling in Obergefell, but may be reluctant to “expand the reach of the 14th Amendment’s Due Process and Equal Protection clauses, which were the grounds for the court’s holding in Obergefell.”
Of course, if the Court was bound by the shifting sands of American public opinion, then Obergefell should have upheld man/woman marriage, which was long-established law in two-thirds of the states at the time the Court issued its ruling.
But what the Left fears most from the addition of Barrett is the possibility of a 5-4 truly conservative Court (given Chief Justice Roberts’s propensity to align with the “living Constitution” wing of the Court on any issue of importance) upholding a growing number of abortion restrictions passed at the state level or, horror of horrors, reversing the “right” to slaughter 60 million preborn children discovered in the “emanations and penumbras” of the manufactured “right to privacy” clause.
Nothing drives the Left more insane than the possibility of being denied ritualistic observances of the unholy sacrament of death that it has come to feel is an undeniable right.
The great irony is that tens of millions of Americans have everything to fear from a judiciary that rules based on race, sex, or any other physical or behavioral characteristic, but no one should fear a Court that ignores those traits and issues opinions based on the facts of the case and the text of the Constitution as written.
The Constitution is the legal manifestation of the truly American belief that justice is blind and that all are equal under the law.
And that is an idea that should be comforting to, and supported by, every American.
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