Throughout Neil Gorsuch’s Supreme Court confirmation hearing, Senate Democrats harped on minor cases and reiterated their disingenuous complaints about President Obama’s ill-fated nomination of Merrick Garland last year, which was not considered amid the presidential election. (Their complaints are disingenuous because top Democrats have opposed confirmation under similar circumstances when a Republican was doing the nominating, calling to mind Michael Barone’s axiom: “All procedural arguments are insincere, including this one.”) The most important defense of Gorsuch lies not in rebuttals to these distractions but in recognizing the threat posed to constitutional self-government by the activist faction of the Court.
To be sure, most Supreme Court decisions either do not break down along familiar ideological lines or are unanimous. But over the last quarter century, on several key constitutional issues, the Court has nonetheless been consistently divided into recognizable “conservative” and “liberal” blocs of three or four justices. Though such labels can be imprecise, the “conservative” justices generally are more apt to interpret the Constitution as written and to allow legislatures to adopt either conservative or liberal policies on issues where the Constitution is silent. The “liberal” bloc, meanwhile, has increasingly blurred the line between constitutional law and the political Left’s policy preferences. Its justices have shown little interest in the nuances of federalism, voting to uphold every federal law that purports to be based on the interstate-commerce clause, regardless of how little the law’s reach can be described as either interstate or commercial (e.g., United States v. Lopez, United States v. Morrison, and Gonzales v. Raich). They indulge judicial supremacy, however, in the context of war powers. In Boumediene v. Bush, the liberal bloc, joined by swing vote Anthony Kennedy, concocted its own amorphous process for detainees at Guantanamo Bay to challenge their detention, overriding generous procedural protections conferred by the president and Congress and ahistorically injecting the courts into questions surrounding the capture of enemy combatants on overseas battlefields. The same combination of justices has been whittling away at the death penalty to the point that its judicial abolition, despite the Constitution’s explicit reference to it, was foreseeable prior to the 2016 election.
Then, of course, there is the Court’s wholesale constitutionalization of the sexual revolution, from Roe v. Wade to Obergefell v. Hodges. There are sound interpretive methodologies that recognize unenumerated constitutional rights, but none that confer such a status on abortion, long recognized as a criminal act under common and statutory law and as an issue on which the Constitution was silent. Condemnation of Roe’s deficiencies, once common among pro-choice advocates, has become muted in those circles in recent decades. One exception is “Support Choice, Not Roe,” a 2005 Washington Post column by Richard Cohen showing appreciation for the distinction between the Constitution and individual policy preferences. Were it not an aberration, Cohen’s position could be the basis for a healthy debate in the elected bodies designed to decide issues unaddressed by the Constitution. Instead, we see an unprecedented volume of expensive election-style ad campaigns for and against every new nominee to the Court, illustrating how much a branch designed to be independent and unelected has taken power from an electorate increasingly anxious to get it back. Had Hillary Clinton won the election, there is ample reason to imagine that a future Court would have doubled down by compelling public funding for abortion — the precedent upholding the Hyde Amendment was decided on a 5–4 vote — or following the reasoning of Obergefell to treat believers in the traditional definition of marriage like the racial segregationists of yesteryear.
It would be too charitable to describe the liberal bloc’s excesses as the mere embrace of a “living Constitution.” After all, conservative judges have articulated vibrant defenses of constitutional rights by adapting original meanings to changing technologies. Instead, what has happened more appropriately calls to mind Robert Bork’s comment: “I have no difficulty with the idea of a Constitution that lives, only with the notion that it keeps sprouting new heads in accordance with current intellectual and moral fashion.”
Contrast the weight given to such newly sprouted rights with the diminishing of rights explicitly mentioned in the Constitution. For instance, the liberal bloc is fine with allowing the punishment of political speech, as expressed by its dissent from the majority’s decision in Citizens United v. F.E.C. The overturning of that precedent has in fact become another Democratic litmus test. (Never mind that such a reversal would shrink First Amendment protection to the point that the government could censor and subject to imprisonment anyone organized in a corporate form wishing to criticize a candidate on the ballot through videos or other media.) In District of Columbia v. Heller, the liberal bloc dissented from even the narrowest recognition of an individual right to bear arms under the Second Amendment: the right to keep a handgun for self-defense in one’s own home. In still another case, Kelo v. New London, the bloc secured a majority that effectively deleted the words “for public use” from the Fifth Amendment’s takings clause when the Court upheld a city’s seizure of private property for transfer to wealthier private entities.
None of this is to argue that the conservative bloc is always right or to overlook issues that do not align neatly with either bloc, not to mention long-serving justices who change their views. But everything is a matter of degree, and this one is not a close call: The departure from constitutionalism has been most pronounced on the left, where the persuasion of voters and elected officials of the merits of their policy positions has increasingly given way to the embrace of judicial fiat.
By enabling the nomination of Judge Gorsuch (and, perhaps, other constitutionalists like him), the 2016 election may have saved our system of constitutional self-government from irreparable damage.