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Right Opinion

Supreme Court Hysteria

Bill Wagner · Jul. 5, 2018

There’s no question the appointment of a Supreme Court justice is a big deal. But does it really warrant the type of hysteria we are seeing from the Left? Justice Anthony Kennedy was unreliable, siding as often with either the liberal or conservative wings of the Court. Chief Justice John Roberts is likely to be more of the same, so the real difference with a Donald Trump conservative on the Court is nowhere near as great as the Left is trying to make you believe.

Since you could measure the time difference between Kennedy’s retirement announcement and the mailing of Democrat fundraising solicitations in nanoseconds, the cynic might think it’s all about campaign financing. But there’s also the fear factor — the one Democrats raise every time there is an opening on the Court — which is to remind women that their right to choose is about to disappear.

This time the Left has tossed in the fear of low-income Americans losing their subsidized health care, but the main event continues to be the possible overturning of Roe v. Wade. The rhetoric is all emotional and so lacking in intellectual honesty that it’s almost laughable. The Left seems to paint “conservative” jurists as an old, angry white guys rubbing his hands with glee at the prospect of going into the courtroom and casting that deciding vote that strips away a woman’s right to choose.

In fact, the term “conservative” applied to judges has zero to do with their personal view of abortion, or even their personal view of the conceptual merits of the Roe decision. I wouldn’t be surprised if Trump’s list of candidates, who are all considered “pro-life,” held views on Roe not dissimilar from mine. I consider myself pro-life in that I believe all life should have a seat at the table, but that has to be balanced against the rights of an expectant mother.

Roe tried to strike that balance and even left open the possibility that things like changes in technology could move the legal dial. It got it about right in concept. However, the case should never have been in front of the Supreme Court in the first place, since abortion can’t be found in the Constitution, and the justices had to essentially invent a new right — privacy — to justify standing. How a new conservative jurist might rule on the merits is unknown, but if “conservative” equates with “originalist,” then the right decision would be to send the case back to the states.

And if so, unlike the Democrat hysteria over the “destruction” of a woman’s right to choose, we would have 50 different determinations, some more and some less restrictive than the Roe ruling, but all consistent with the originalist approach to the Constitution — namely, the case did not belong at the Supreme Court. They would also tell you that the Founders had the prefect remedy for making the case the purview of the Supremes — simply go through the process of amending the Constitution.

That falls into the category of the other big fear of the Left. For years, going back as long as the civil rights laws of the 1960s, the Left used the Court to effect social change with the stroke of a ruling by nine unelected judges, rather than go through the laborious task of debating, arguing, and convincing constituents at the state level. In the ‘60s, the Commerce Clause was used to justify standing for civil rights laws to be argued at the Supreme Court level.

That clause was part of the Constitution because the Founders wanted to prevent individual states from restricting commerce among themselves (no state-to-state tariffs, for example). It was never intended to be used as an excuse to effect social change, because, taken to its extreme, virtually anything in society could be considered as possibly impacting interstate commerce. But the argument for enacting national civil rights laws during that tumultuous period was so great that even “conservative” legal scholars looked the other way, and the laws passed constitutional muster thanks to the Commerce Clause.

Ditto ObamaCare. The Court magically found the concept of a “tax” as the price of mandate noncompliance, even though the word is nowhere to be found in the legislation’s mandate section, and the authors and executive branch supporters went out of their way to claim on multiple occasions that the payment was a penalty, not a tax. Nevertheless, the Court so wanted to avoid controversy on a major social issue that it invented a rationale. I could add same-sex marriage, but you get the idea. It is yet another Democrat nightmare that they may have to actually marshal their points, debate the American people, not just nine judges, and win their arguments in Congress. And God forbid that the issue gets sent to the states. They would have to rinse and repeat 50 times.

All legislators are partly at fault. It’s just that Democrats have elevated it to an art form. They have crafted legislation that is either too vague and voluminous to understand or deliberately delegates legislative authority to the executive branch, all in hopes of avoiding tough votes. Conservative courts are far more likely to send cases back to the legislature with an admonition to try harder to make the law clear than rubber-stamp social change. All the more reason why the Left is petrified about a “conservative” Court.

By the way, a conservative Court is also more likely to curb the unilateral authority of the executive branch to use the “pen and phone” and demand that Congress do its job. Ironically, the same folks who want Trump impeached for being a tyrant are the same ones railing against conservative jurists.

Sadly, the Court has grown in power and status, way beyond the original intent, in part because those who should be making the laws are too timid to take a stand. This also heightens the importance of a single new justice. But again, the irony is that an additional conservative on the Court is more likely to diminish the power of the Court over time as rulings are sent back to square one at either the legislative or state levels.

One can argue the proper role of the Court, but it really lands on a simple concept — should the Court try to rule on controversial issues on their merits, or first decide whether it should be ruling at all? That’s really where the concept of a conservative Court should land. The Left’s rhetoric is just stoking fear, while completely missing the point. Probably by design.

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