If America’s citizens care to wake up and pay attention before they elect as president a sweet-talking, moderate-posing left-wing ideologue with a history of alliances with anti-American radicals, one of the several matters they ought to think seriously about is the future of the Supreme Court. Simply put, the survival of the historic American experiment in representative government will be in serious jeopardy if Barack Obama is our next president.
Our Constitution establishes a constitutional republic, a system in which, within the broad bounds that the Constitution sets forth, policy issues are to be determined by American citizens through their elected representatives at the state (including local) and national levels. The great battle over the Supreme Court in recent decades is between the proponents of original meaning and judicial restraint, on the one hand, and judicial activists, or advocates of living constitutionalism, on the other. Proponents of original meaning and judicial restraint embrace an interpretive methodology that respects the vast realm of representative government. Advocates of judicial activism and living constitutionalism, by contrast, redefine the Constitution to mean whatever they wish it to mean. They willy-nilly invent rights that aren’t in the Constitution and ignore those that are. Theirs is a philosophy of government by judiciary, with the operations of representative government confined to those matters that the justices aren’t quite ready yet to take charge of or that they think don’t matter very much.
If you’ve been paying attention to the media’s scant coverage of the impact of the presidential election on the Supreme Court, you’ve been hearing that we currently have either a “conservative” Court or a Court delicately balanced between its “liberal” and “conservative” wings. Electing Obama as president is unlikely to change anything, you’re told, because he’d probably just be replacing liberal justices. The real threat, Obama himself tells us, is that John McCain would appoint justices who would vote to overturn Roe v. Wade and thereby (supposedly) make abortion illegal.
Wrong on all counts.
1. For starters, if we are to use crude political terms, the current Supreme Court is markedly to the left of the American public. The Court has a working majority of five living-constitutionalists. Four of them — Stevens, Souter, Ginsburg, and Breyer — consistently engage in liberal judicial activism, and a fifth, Kennedy, frequently does.
For evidence of how liberal the current Court is, consider the biggest cases of last term. In Boumediene v. Bush, the Court ruled 5-4 (with the five living-constitutionalists in the majority) that aliens detained by the U.S. military abroad as enemy combatants have a constitutional habeas right to challenge their detention in American courts. In so ruling, the Court struck down the statutory framework that Congress and the President had crafted. I’ll set aside here an extended discussion of how wildly wrong the Court’s ruling was. For present purposes — i.e., showing that the Court is well to the left of the American public — I’ll simply note the public’s strong disapproval of it (by a margin of 61-34 in a Washington Post poll).
In Kennedy v. Louisiana, the same five justices formed the majority that ruled that the death penalty for the crime of raping a child always violates the Eighth Amendment — “no matter,” as Justice Alito put it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” Again, let’s set aside how badly reasoned the majority opinion was. Even Barack Obama recognized how poorly the majority opinion reflected the public consensus that it purported to determine, as he rushed to assert his disagreement with the Court. A Court to the left of where Barack Obama claims to be on a telltale case like this cannot be described as conservative or moderate.
Finally, consider by contrast the one big “conservative” victory of the term, the recognition of individual Second Amendment rights in District of Columbia v. Heller. This decision was so popular with the public that Barack Obama tried to make it appear that he agreed with it.
Let me be clear: I am not arguing that public approval is the measure of whether a ruling is correct or not. On the contrary, it has no bearing on that important question. Rather, I am using it here only for its bearing on the very different question whether the Court, in crude political terms, is liberal or conservative.