On July 5th I wrote that conservatives remembered what the left had done to Judge Robert Bork and believed Judge Brett Kavanaugh would be a just appointment to the seat Bork was denied. The extreme efforts to stop his nomination confirm that the left was determined to prevent that from happening. Of course, at the end of the day the ferocity of the opposition to this appointment illustrates the outsized power the court has assumed in our country. The fear of losing the power of the court as their vanguard, of the gavel being in the hand of others, explains the lefts willingness to “do anything” to defeat the nomination. Indeed, some even suggested Senate Judiciary Chairman Chuck Grassley was not qualified to lead the committee because he is not a lawyer. The fact is Senator Grassley has as many hours in law school as Senator Feinstein, the ranking minority member.
One writer explained his fear, writing that conservatives are now happy because they are convinced the new justice will “legislate their priorities (no abortion, no affirmative action, no Obamacare) from the bench”. Foreshadowing this power shift, Justice Kagan sounded the alarm in a dissent in Janus v. American Federation of State County and Municipal Employees Council 31 complaining of an activist court where:
“The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
And in the same dissent she wrote this about why the majority took its path:
“Because, that is, it (the 5 judge majority) wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today, that healthy—that democratic—debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.’” (Bold emphasis added)
Of course, Kagan did not feel the same way when a 5 judge majority ended the democratic debate and prevented the American people “acting through their state and local officials”, as well as citizen initiated referendum in a large majority of states on the issue of same sex marriage in 2015.
In fact, Kagan’s dissent in Janus sounds a lot like that of Antonin Scalia writing in one of his dissenting opinions “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
The Scalia nod to self-government and judicial restraint echoed the warning of the President who appointed him. Reagan taught that like any branch of government, the power of the judiciary could be abused, noting he intended to appoint judges “who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism”. President Trump indicated he agreed with this view of a humble judiciary and promised to appoint accomplished judges who recognized the importance of judicial restraint.
The shrill warnings that a conservative court will legislate no abortion, no gay marriage or no Obamacare from the bench are misleading. Conservative advocates of judicial restraint focus on who makes the decision, not on what decision is made. Indeed, conservatives since Reagan and Bork have argued that in the widest degree possible the people are free to govern themselves through “state and local officials”, even making laws that the brotherhood of the bar may believe to be dumb. Reading her dissent in Janus in sounds that Justice Kagan may now share this view.
In truth, if a majority of the Supreme Court were to reverse Roe v. Wade or Obergefell tomorrow, all that would mean is that a new democratic debate would begin and the people again would have the freedom to govern themselves on those issues, setting policy through their legislatures.
Will Justice Kavanaugh be able to resist the temptation to override legislation that he may personally oppose? The way his nomination was opposed suggests many fear he will not. Perhaps just as many hope he will not, but rather will enact a libertarian platform on regulatory and economic policy.
Perhaps now, having just witnessed another savage confirmation fight and sensing liberal fears about a “reactionary” majority on the Supreme Court, left and right can agree on some reforms that would limit the power of the court. I have previously mentioned one reform suggested by Texas Governor Greg Abbott that 7 of 9 votes of the Justices be required in order to overturn a democratically enacted law. Another has been a suggestion that Justices have term limits. There are arguments against both, but if the Court were restored to its traditional restrained role, nominations would not matter nearly so much. Even the debate would help.