The ‘Kavanaugh’ Effect Might Win the Midterms. What Will It Be on the Court?

By Christopher Manion Published on November 2, 2018

Are Democrats afraid of Mr. Justice Kavanaugh? Or are they just afraid that a powerful Supreme Court could turn against them?

Wait — isn’t the Supreme Court “above politics”? After all, most folks nowadays have been instructed by civics books, historians, and lawyers to have only the highest regard for the Supreme Court. In fact, according to a Gallup Poll taken in July, approval of the Supreme Court is the highest it’s been in nine years.

Generation of Americans have been taught to revere the Court over the years. That’s because the people doing the teaching were liberals who liked what the Court has done. And they’ve done a lot. Here’s a brief thumbnail of how that happened.

“The Constitution is what the judges say it is.”

In 1907, Governor Charles Evans Hughes of New York observed that, “We are under a Constitution, but the Constitution is what the judges say it is.” Hughes later became Chief Justice of the Supreme Court.

Liberals on the Court have been on a roll ever since. And Christian teaching and Christian morals have been their favorite target. In 1962, the Court threw out prayer in public schools nationwide. In 1963, it banned the Bible for good measure.

The Court had no constitutional right to do so, of course. But the Constitution had become the plaything of five unelected lawyers with impressive offices on Washington’s Second Street NE.

As Hughes put it, they get to say what the Constitution is.

A Dictatorship of Judges

Taking a clue from the secular culture, the Court struck down laws banning abortion nationwide in 1973. But the Sexual Revolution kept on rolling. The Court simply had to keep up.

In 1992, in a 5-4 decision, the Court affirmed its 1973 abortion decision, with Justice Anthony Kennedy casting the deciding vote. Then in 2003, Kennedy wrote the majority opinion declaring unconstitutional all state anti-sodomy laws. In 2015, again with Kennedy’s critical vote, the Court struck down state laws that denied a marriage license to same-sex couples.

Of course, American liberals hailed all of these decisions as “progress.” As long as the Court has gone their way, the concentration of power in the Court hasn’t troubled them. In fact, they love it. After all, not one of the above decisions would ever have been passed as legislation by Congress, and the liberals know it.

That, in a nutshell, is why liberals have warmly welcomed the Court’s embrace of the roadmap drawn by Chief Justice Hughes.

But not any more.

Liberals fear a conservative Court because they believe the Court will now wield that power against them. Power is their only principle, and they cannot imagine that any intelligent person could possibly not wield it.

The Left advocates the concentration of power — except when they don’t control it. Now, with Kavanaugh’s confirmation, they fear that the conservative Court will wield unlimited sway the way the Court has done for generations. For them, it’s not about justice, but raw power. That explains the irrational rage and violence that they brought to the public square during the Kavanaugh hearings.

Is There Principle Behind The Power?

Are their fears well-founded? Not necessarily. Justice Kennedy operated on a view of law and liberty that he explained in 1992. “At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” And that goes for the Supreme Court, too. In plain English, Justice Kennedy believes that five justices on the Supreme Court have the right to define not only what the Constitution is, but what reality is. Isn’t that what “liberty” is all about, he said?

Liberals fear a conservative Court because they believe the Court will now wield that power against them. Power is their only principle, and they cannot imagine that any intelligent person could possibly not wield it. They assume that no one could avoid a temptation so powerful that Satan even tried it out on Jesus in the desert (Luke 4:1-8).

So: does the “Kavanaugh Court” have to play by Justice Kennedy’s rules?

Not necessarily.

Let’s face it, the Left is materialist. They cannot understand the transcendental, unless it serves revolution and power. So they cannot comprehend the possibility of a different approach to liberty and “the mystery of human life.”

A Consensus About Reality and Morality

There is such an approach, however. It was articulated by Pope Benedict XVI when he spoke to the bishops of the United States on January 19, 2012. Note that he doesn’t address America in the language of Justice Kennedy’s self-absorbed soliloquy. Instead, he uses in the language of history grounded in reality and experience.

At the heart of every culture, whether perceived or not, is a consensus about the nature of reality and the moral good, and thus about the conditions for human flourishing. In America, that consensus, as enshrined in your nation’s founding documents, was grounded in a worldview shaped not only by faith but a commitment to certain ethical principles deriving from nature and nature’s God.

Benedict reminded Americans what our own history and culture affirm. The Declaration of Independence tells us that we are created. Life, liberty, and the pursuit of happiness are gifts of our Creator.

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For Justice Kennedy, our Creator didn’t tell us how to use those gifts. For him, “liberty” means we have to figure that out for ourselves. Reality will dutifully comply.

But Justice Kennedy does not have the last word. According to the Declaration, those gifts were bestowed on us in the context of “The Laws of Nature and of Nature’s God.” Those are binding laws that man must embrace and follow, laws without which man would collapse into self-worship and sordid squalor.

With our unalienable rights we are called to an inescapable duty to follow those laws.

Justice Brett Kavanaugh has succeeded Justice Kennedy on the Court. The Left fears he will go after them big time. But will he?

What would come to pass if, instead of launching a power play, a conservative Court were to acknowledge the “consensus about the nature of reality and the moral good” that lies at the heart of America’s culture? And interpret the Constitution in the same spirit with which it was written 229 years ago?

Perhaps Americans would begin to examine the truths that lie at “the heart of liberty” all over again.

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