Monday, March 16, 2020

The Federal Judiciary As Supreme Legislature

     It has been noted on many occasions how the Left has relied on the decisions of federal judges, who are not elected and can hold their offices for life, to impose its agenda upon the nation. Of course, that requires that those judges do as the Left prefers. When it is otherwise, the Left becomes incensed. Their dudgeon becomes especially high when a federal court overturns a precedent that favored something the Left prizes.

     But throughout all this, little note has been taken of how the Right, when in power, has often relied upon the federal judiciary in a similar though not identical fashion. Consider as an example the odious Bipartisan Campaign Finance Reform Act of 2002. President George W. Bush disapproved of that Act but signed it anyway. He said openly that he hoped the Supreme Court would reject the Act as unConstitutional, which he believed it to be.

     Hold hard there: If Dubya believed the Act to be unConstitutional, why did he sign it? Why did he rely upon having it ruled out by SCOTUS?

     The answer is simple: President Bush feared the political consequences of vetoing the Act, which had many supporters among both Democrats and Republicans on Capitol Hill. But as federal judges, being unelected and appointed for life, do not suffer electoral ejection from office, they could protect America from the Act without fear. That SCOTUS upheld the Act came as an unpleasant surprise to the Bush II Administration.

     And today we have this article:

     American liberals once worshipped at the feet of Lady Justice. During the 1960s, the heyday of the progressive Warren Court, jurists became the tip of the left-wing spear. If the public refused to accept the latest progressive nostrum, no worries. Judges would simply impose whatever utopian scheme was in fashion.

     All in the name of everything that was good and right, of course. Liberals denied they were distorting the Constitution. They believed that if you checked the penumbras and emanations, as well as interstices and permutations, you could discover hidden meanings that had escaped decades, even centuries, of previous policymakers and judges.

     And there was no hidebound commitment to antediluvian precedent. Indeed, for 60s lefties, precedent was an attractive target. Sometimes deservedly: In Brown v. Board of Education of Topeka, a unanimous Supreme Court overturned the wretched Plessy v. Ferguson, the 1896 decision that enshrined “separate but equal,” legitimizing segregation. Decades of practical experience had made clear that separate was anything but equal.

     During that era, no one on the left talked about “super precedents” that could never, ever be reconsidered, the way progressives reverently speak of Roe v. Wade today. In those days liberals believed, amazingly, that bad decisions should be reversed.

     Please read it all. Today the Left sings paeans to stare decisis and “judicial restraint.” Why? Because owing to the flood of Trump appointments, the federal courts are trending to the Right, and likely will continue to do so for a couple of decades. The most recent threat to Leftist shibboleths, “abortion rights,” will come under High Court scrutiny with a case that questions whether the state of Louisiana can require that an abortion provider have admitting privileges at a local hospital.

     Regardless of whether you consider “judicial review” in the train of Marbury v. Madison to be a Constitutional power of the federal courts, the ironies here are delicious. The Left cannot have it both ways: unlimited power to review and overturn when the Left dominates the courts, but absolute adherence to stare decisis when the Right is in the ascendant. Yet that appears to be their aim.

     Consider this small matrix of Leftist rhetorical emissions, composed by the great Thomas Sowell:

Position Before Enactment After Enactment
Left-Favored: “Inevitable” “Here to stay”
Left-Opposed: “Unrealistic” “Outmoded”

     And that, Gentle Reader, is what Leftists say when they’re not foaming at the mouth and dripping vitriol from their fangs.

     Because of the Rightward shift of the federal courts, the Left’s drive to dismiss the text of the Constitution in favor of a “living document” that says only what the Left wants it to say is foundering...and we have the 45th President of these United States, Donald J. Trump, to thank. Let this be a reminder to those thinking of not supporting President Trump come November 3.

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