The shrillness of the response on the Left at the prospect of President George W. Bush appointing a justice to the US Supreme Court after the retirement of Associate Justice Sandra Day O’Connor is a direct measure of just how out-of-kilter the jurisprudence of the Supreme Court has become. Even before knowing who the President’s nominee will be, Senator Chuck Schumer(D-NY) was overheard declaring, “We are contemplating how we are going to go to war over this.” The martial ardor of Schumer and his fellow Democrats and Liberals is a consequence of out-of-control judicial activism and repeated losses at the polls. After losing the Presidency, Congress, the Senate, and the bulk of state legislatures, the courts, led by judicial activists, remain the only way to implement the Liberal agenda. Elections matter. Reactionary Liberals are desperately trying to hold on to past gains and to implement laws that have been largely repudiated by the electorate.
If courts and the Supreme Court, in particular, just had sufficient self-discipline to interpret the law and the US Constitution according to the judicial philosophy of original understanding, then in principle the political inclinations of a judge is immaterial. If judges did not impose their own views of what the law ought to be, then their views would not be particularly relevant. However, Liberals have developed over a century a theory of jurisprudence whereby presumably enlightened judges, can breathe fresh life into laws and alter them to suit Liberal sensibilities. Once such jurisprudence is accepted, the political philosophy of the nominees becomes very important. Indeed, even a return to a judicial philosophy of original understanding becomes a threat.
There have been many controversial court decisions, most recently about the states’ right of eminent domain and about the appropriate interpretation of the First Amendment prohibition that Congress shall make “no law respecting an establishment of religion or prohibiting the free exercise thereof.” However, abortion is the colossal issue that has focused all the unwanted attention on the Supreme Court. Abortion decisions, from Roe v. Wade that prohibited the limitation of abortions before fetus viability to Madsen v. Women’s Health Center where the Court limited the free speech rights of protestors around abortion clinics, have done the most pernicious damage to constitutional jurisprudence. In order to permit the widest possible latitude for abortions, the Court has found it necessary to distort the Constitution far more than for other issues. It will be difficult for the Court to recover from this damage.
The irony is that if Roe v. Wade were overturned, laws affecting the bulk of pregnant woman would probably remain largely unchanged, consistent with the general disposition of the country. Most of the states would voluntarily allow abortions in the first trimester of pregnancy. However, against the desires of the rabid abortion lobby, many states would limit late-term abortions and require parental notification before minor girls are permitted to obtain an abortion. Liberals are fighting to retain a rather extreme position on abortion: unfettered of abortion on demand for anyone until birth.
On other issues, the eagerness of Schumer and his Liberal allies to go to “war” over a Supreme Court nomination is also a consequence of an accurate assessment that the public is largely against them on many questions from gay marriage to the Court’s excessive hostility to religion.
Since the Court has erected a fortress of extreme positions, it will take at least a couple of decades of Conservative decisions on the Court to restore judicial respect for the original understanding of the Constitution. Until the US Supreme Court returns to being a court rather than a super legislature, nominations to the Supreme Court will continue to be high-voltage disputes. Once restoration is achieved, Liberals, if they are to win political victories, will have to do so the hard way. They will have to persuade Americans of the prudence of their ideas.