The Supreme Court Joins the ‘War on Women’

by Charles C. W. Cooke

Over at The Hill, Brent Budowsky throws another “war on women” bomb into the ether. As is typical of the genre, it is heavy on righteous indignation and light on argument. Predictably, if somewhat diffusely, Budowsky starts by contending that all Republicans are out deliberately to “hurt women”:

Republican opposition to equal pay for women is a disgrace. The vulture capitalism of Mitt Romney is a disgrace. The Ayn Rand-like reactionary budgeting of Wisconsin Rep. Paul Ryan (R) is a dagger in the hearts of programs that serve women. The Austrian economics of Ron Paul is from the wrong century and the wrong continent, and profoundly hurts women.

And so on and so forth. We’ve heard all this before. But Budowsky then suggests that the Supreme Court has joined the fight: 

If the Supreme Court throws out the healthcare law as unconstitutional it will foment a powerful political backlash and escalate the judicial front in the war against women.

Why? Do women not believe in the Constitution? Are women different from other citizens and in need of special protection? Is the Constitution a document designed to protect women’s social programs? If not, why should the striking down of Obamacare have anything in particular to do with women? He continues:

The Supreme Court is indeed on trial with the American people and the high court of history.

No, its not. Sentences like this mean absolutely nothing. The federal government is on trial in the land’s highest court because it is being sued by 26 states and a host of other plaintiffs for overreaching its enumerated powers. #more#The court is considering whether or not a law is constitutional. No amount of “right side of history” bunk can change that fact. This is an attempt to set up a narrative should the law be struck down. Still, Budowsky tries gallantly:

The five men on the Supreme Court who promote these wars against women decisions and join with war against women Republicans should step back, uphold the law and begin acting with judicial impartiality. 

As has become obvious since the oral arguments, the Left is now defining “judicial impartiality” to mean upholding Obamacare and ruling in the way the Left likes. Political affiliation should not be a consideration when discussing judicial review, but, as I wrote on Thursday, while the charge of partisanship is seemingly only applied to the “conservative” justices, they are not actually the uniform group. In fact,

the real speculation has been about how “conservative” Justice Roberts and “independent” Justice Kennedy will vote, while there has been no conjecture whatsoever about the likely opinions of the court’s four “liberals” — Kagan, Sotomayor, Breyer, and Ginsburg — all of whom are widely predicted to side with the administration. Clearly, if any group within the court deserves to be described as “doctrinaire,” it’s this quartet. No such depiction has come forth.

Those justices who disagree with Budowski, he labels “partisan Republicans and extreme ideologues with an agenda that dishonors the law, and does grave damage and injustice to the women of America.” In doing so, he finally eats his own argument. The notion that the court should be “impartial” — eschewing ideology and looking only at the law — but also rule in ways that help women makes little sense. Budowsky runs into the same problem that progressives always do when discussing the Constitution, that being that he doesn’t really believe in it.

It is legitimate, if unsound, to argue, as Woodrow Wilson did, that the Constitution is a stumbling block to what “needs” to be done by government and should be replaced or “made a blank paper by construction” — but it is almost impossible to make the case that the government needing free reign is consistent with the Constitution. Put simply, it’s not. Ultimately, one has to pick a side: You’re either for limited, constitutional government in a society in which legal arguments play a significant role, or you’re for unchecked government power in a wholly political society. But you can’t be for both. And as Budowsky defly proves, to try and be so inevitably leads to one beclowning oneself.