The Future of the Supreme Court: What to Watch For in the Coming Appointment Battle

By Rob Schwarzwalder Published on June 28, 2018

The pending resignation of Anthony Kennedy from the Supreme Court is an extraordinary moment in American history. The potential for a constitutionalist majority is stunning. It could undo decades of “justice by personal preference.” In other words, all the liberal policies the left couldn’t get through Congress, representing the will of the people. So they used activist judges, ignoring the Constitution.

The Left understands this. Read any of the liberal publications or watch their spokespersons on the news. Thinly-veiled hysteria permeates their comments.

Of course, the Left also understands that it needs to make most of its arguments in code. Watch for terms like “reproductive rights,” “a woman’s right to choose,” “marriage equality,” “extreme” and “turning back the clock” to fly like bullets in coming weeks.

If what the Left really wants were spelled-out, many Americans would respond in horror. When they say “reproductive rights,” this is one of the things they mean: the legal right of a doctor to stick a blade into the brain of a 9-month-old unborn child.

Here are some things to watch for as the upcoming battle unfolds.

Moral Clashes

First, we will be witnessing a clash not just of legal theory, but of moral judgments and views of the world. Secularism teaches that man is, essentially, his own god. He decides what’s “right for him,” even to the point of altering reality (just what “gender” do I choose to be?) to achieve it.

If the Constitution doesn’t explicitly forbid something, Congress and the courts take this as license to do it. That’s not what the Constitution intends.

Secularists will also argue that some people are more “god-like” than others. The elites in education, media, and government know what’s best for the other 98 percent. When in 2015 the Supremes upended every society’s historic definition of marriage, the five jurists who supported this move were acting in the best interests of those who opposed it or were unsure of what to do.

31 states had enacted laws saying that marriage is the union of one man and one woman. Without so much as a reference to the will of the people, Justice Kennedy and four of his cohorts imagined a “right” that exists neither in fact nor the Constitution.

Threatened Leftists

That leads to a second concern: The Left is threatened by constitutional governance. There are two reasons for this:

What the Left Wants

The Left wants a government that manages the affairs of ordinary people and the course of the nation in general. It wants the national state to usurp the roles of the church, the family, the community, and of private institutions. It becomes not the protector of rights, as it is under the Constitution, but the provider of goods and services. It thereby becomes the object of unknowing but powerful worship.

Constitutional governance defies this philosophy. God, religion, voluntary associations (both formal and informal), and the marketplace diffuse political power and people’s loyalty to political institutions. This horrifies people like Hillary Clinton. She and her many peers believe their enlightened wisdom should govern the life of the nation.

The Founders of our country knew the danger of an unwritten constitution. That’s what they had lived under throughout the colonial period. The British “constitution” was a matter of tradition and assumption, not careful definition. This gave the king and the parliament the ability to enact whatever they wished. There was no legal constraint, becoming effectively dictatorial.

Clinton wants to rule everyone’s lives. The Constitution? It lets the “deplorables” run their own lives.

The first reason is that liberalism has used the courts to achieve what it cannot obtain through legislation or the ballot box. Same-sex marriage is a prime example, abortion being another. They pack the courts with judges who twist the Constitution to conform to their political beliefs. They do much this way that “We, the People” do not want.

The law professor Raoul Berger called this “government by the judiciary.” Another justice who believes in the Constitution as it was written will undercut the Left’s initiative to get what it wants through the highest court.

The Constitution is a written text whose meaning is not obscure. We know what those who drafted it, and the Bill of Rights, meant. We have the records of the debates at the Constitutional Convention in Philadelphia. We have The Federalist Papers and The Anti-Federalist Papers. We have records of the debates at the state ratifying conventions. We have the legal dictionaries in use at the time the Constitution was written. Put simply, the Constitution is not legal Silly Putty that can be distorted to create the shape the Left demands.

The second reason that constitutional government threatens the left is that the Left sees government as having theological power. Constitutional government imposes limits on what the federal government can do. Much of what Washington has done has been unconstitutional. But much has been extra– Constitutional: If the Constitution doesn’t explicitly forbid something, Congress and the courts take this as license to do it. That’s not what the Constitution intends. It intends that decisions not expressively delegated to the federal government belong to the states.

That’s why things like federal departments of education or housing are so dangerous. If Congress can just create something not forbidden by the Constitution, Leviathan R Us.

The Constitution That Constitutes

That is why, and this is the third thing to keep in mind, those who enacted the Constitution and the Bill of Rights wanted a written document to “constitute” what the new country would be. They wanted things defined and clear for all to read and understand. A written text would constrain the government, define its duties, and clarify the rights of citizens and states.

The Constitution says this clearly. If the text were not clear, why include a Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”? The Constitution says what the federal government can and cannot do — clearly, without question. Everything else goes back to the states and the people living in them.

Additionally, why include a process for amending the Constitution in the text itself, if that text can just be stretched to get what someone wants out of it? You only change something if you can define what needs changing.

They were also people of a greater Book. As a Bible-drenched people, they understood the importance of having truth expressed in clear, declarative, propositional language. They wanted politically what they had theologically, a written document that set forth, for as long as the country existed, what that country was and was not.

Leftist Materialism

Fourth, the Left’s project reflects its materialistic approach to life. If our rights do not come from God, what’s left? Just us. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” So wrote Anthony Kennedy in Planned Parenthood v. Casey (1992).

Using Kennedy’s reasoning, a mass murderer could define his “concept of meaning” in terms of killing others. Using that same reasoning, who’s to say he’s wrong? If man is merely material, without objective duties to God and others, why not let chaos reign?

Conscience keeps most of us from imitating Charles Manson. But if matter and time are all we have, many of us will just live for our own gratification. Pleasure becomes the chief end of man. Which means men objectify women, women destroy their unborn children, and children are abandoned by at least one parent who no longer wishes to remain married.

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Fifth, be careful of your expectations. For example, Roe v. Wade has been law for 45 years. It’s result — 55 million unborn children killed — has been more evil and more tragic than words can express. Yet it has become entwined in American life.

Roe must be disentangled from our law and culture. But any surgery requires a sharp scalpel, carefully wielded. A constitutional Supreme Court should get rid of unrestricted access to abortion on demand, making clear that the Constitution contains no “right” to abortion. Nor to contraception or pregnancy or artificial insemination.

It would be my hope, then, that the court will declare that the unborn have a right to life. I doubt it will do so. It will probably throw the matter back to the states. That means we pro-lifers will have our work cut out for us in advancing state legislation prohibiting elective abortion.

Constitutional Honesty

Sixth and finally, I’ve used the phrase “constitutional” instead of “conservative.” With the late Whitaker Chambers, I am and always will be a man of the Right, a social, economic, and defense conservative. But properly understanding and applying the Constitution is not a matter of conservatism. It’s a matter of moral integrity and intellectual honesty.

Another justice in the mold of Neil Gorsuch, Clarence Thomas, Samuel Alito, and the late, great Antonin Scalia would make every conservative heart soar. It will also make every liberal heart sink. Which is why we need to think carefully about the fight to come and the way we will respond to it, in our hearts and words and political conduct.

But that’s an issue for another time.

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