The Left has been used to getting what it wanted by judicial fiat. That no longer happens for them. So, they’ve decided to ruin the Supreme Court — and, by extension, our whole judicial system — by trying to scuttle it, pack it, or somehow make it a rubber stamp for their political objectives.
Writing in the Wall Street Journal last year, democratic-socialist historian David J. Garrow candidly and, I think, admirably observed that “you don’t have to be a Federalist Society member to see that the analytical prowess today’s justices demonstrate in opinion after opinion far eclipses the quality of the Warren or Burger Courts’ work product.”
Yes! Now you have justices who are actually engaged in analysis.
The majority of the current high court justices can be defined as originalists. An originalist reading of the Constitution has its drawbacks and limitations. The same approach taken by different judges can deliver conflicting results. There is not always a clear analogy between the legal challenges and cases of one era and those of another as one weighs precedent. But analyses undertaken according to the scientific method have the same limitations. The Left will tell you that that’s cold-hearted and fails to take “people” and their varied circumstances into account. Right!
But you can only go so far in taking individual grievances and circumstances into account in shaping law suitable for an entire nation. There have to be principles and standards and tests involved. An individual’s grievances belong before a state court or a legislature. State legislatures, under our Constitition, have a right to establish their own standards, if not their own radically different principles, and state courts can ratify them. The Supreme Court gets to referee questions of principle, but states continue to have considerable legal and political latitude. The Dobbs decision has underscored that symbiosis (speaking of science and the the scientific method) in the case of abortion.
Charles C.W. Cooke’s analysis of the Left’s legal program in the current National Review — I admit — prompted this essay and borrows heavily from his urgent and critical analysis. This is simply because I agree with his reasoning and because Cooke’s conclusions bears out what I’ve been saying for years, especially during the era the court was hamstrung by Roe v. Wade. I had said repeatedly that the liberal justices were obviously being required to retool and repurpose that decision in an effort to get it to work for the political sector and, in turn, the general public. It was a case of fashioning and re-framing or simply substituting “princples” in order to achieve a forordained desired result. The Dobbs decision pierced that balloon.
The Left and its legal apologists have been scrambling in terror ever since. They have watched their brand of jurisprudence and “critical studies” analysis go crashing to the ground — like that aforementioned deflating and tumbling balloon.
Cooke concludes that Left/Progressive legal activists no longer have anything to offer. Their creative approach to the text of the Constitution has been exposed as being without basis other than the ever-fluctuating whims of a political/judicial establishment that has been making it up as they went along.
I have a friend who is a fine and reputable legal scholar and law school professor. Some years ago he was challenged by a student who described the U.S. Constitution as a contract, suggesting that that student viewed our foundational document as containing fixed rules subject only to strictly and narrow interpretation or amendment. My professor friend’s retort was, “I didn’t sign it (i.e., the contract or social covanant that is the U.S. Constitution.)
No, he didn’t sign it. Neither did I. That’s why, in agreeing to be bound by it, we have far less leeway than we might imagine. For that kind of leeway, one needs, once again, to go to the legislature. That’s where Constitutional amendments are born.
Of course, should the Left’s political program ever fully succeed, we will be a very different nation. I submit that for such a nation, one no longer needs a high court, or, for that matter, ANY court. We would have a dictatorship of the masses.
God save the Court!
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