Law & the Courts

The Supreme Court Is a Dangerous Conservative Obsession

Pro-life activists outside the Supreme Court, October 2016 (Reuters photo: Yuri Gripas)
The Courts are important, but cultural arguments have a larger impact.

Late last week Alabama governor Kay Ivey said out loud what I’ve been hearing from friends and acquaintances across the conservative movement. Even if Roy Moore’s accusers are telling the truth, they’ll vote for Moore. Why? The Supreme Court. Here’s Governor Ivey:

I believe in the Republican party, what we stand for, and most important, we need to have a Republican in the United States Senate to vote on things like Supreme Court justices, other appointments the Senate has to confirm, and make major decisions

She made this statement even though she also said that she had no reason not to believe Moore’s accusers. She would put a man who abused children in the Senate because his votes on court appointees are that important.

This is not a fringe view. It’s held with fierce conviction across Red America, and it was one of the prime reasons millions of people cast votes for Donald Trump even when they believed all or some of the more than dozen sexual misconduct complaints against him. To put it plainly, millions of American voters will willingly put in high office a man they wouldn’t hire to serve as an accountant in their local insurance agency — all because of the Supreme Court.

How did we get here?

One is tempted to offer a short answer to the question, to cite Roe v. Wade and just be done with it. But the reasons are actually deeper, more complicated, and more intractable than one might think. It’s a tale of judicial supremacy and leftist overreach, yes, but it’s also a tale of a movement that too often forgets that politics and culture still can and do trump courts and cases.  

But let’s start with judicial supremacy. Any decent conservative lawyer can cite chapter and verse on case after case where the Supreme Court departed from conventional rules of constitutional interpretation to not just discover a right to abortion in the Constitution but also to specifically and repeatedly target Christian expression in the public square.

Roe is of course the most egregious example. The case itself was so poorly reasoned and written that even liberal scholars expressed reservations. Harvard Law School’s Laurence Tribe said, “Behind [Roe’s] own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Even Ruth Bader Ginsburg expressed concerns, calling Roe an example of “heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict.”

But it’s not just Roe. In Planned Parenthood v. Casey, the court decision that reaffirmed Roe, Justices O’Connor, Kennedy, and Souter (all GOP appointees, but we’ll get to that) articulated a view of liberty that’s nowhere in the Constitution, actively conflicts with orthodox Christian theology, and would surprise many of the Founders. The justices declared that “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.”

As a philosophical statement, this now famous “mystery of life” passage is incoherent. As a constitutional philosophy, it’s indefensible. It’s sappy nonsense, and so is the Court’s ruling in Obergefell v. Hodges, a case that actually includes this line: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” On a Hallmark card, that’s sweet. As a statement of constitutional reasoning, it’s ridiculous.

I could go on. This type of fuzzy reasoning has often been deployed in cases that depart from originalism or textualism to directly target public expressions of Christianity. To rid this nation of school prayer and things like public displays of the Ten Commandments — or to drain public memorials of religious content — the Court invented entirely new standing rules that grant anti-religious litigants special status in federal courts.

And the threats continue. The Court will soon hear cases that will determine whether a state can actually compel pro-life citizens to advertise for free abortions and whether a state can compel a Christian baker to design a cake to celebrate an event he finds offensive. The barriers against compelled speech are among our most sacred constitutional doctrines. Now they may fall in the face of a relentless sexual revolution.

In short, the Court has often diminished individual liberties that are unmistakably and plainly in the Constitution for the sake of protecting rights it concocted out of thin air, such as the right to an abortion or the right to gay marriage. Is it any wonder that conservatives are alarmed?

Moreover, that alarm is only magnified by decades of bad judicial choices. Conservative activists have labored since Roe to put originalist majorities on the Court, yet while Democratic presidents appoint faithful liberals, Republican presidents often swing and miss. For every Scalia and Thomas there’s an O’Connor and Souter. For every Alito, there’s a Kennedy, the swing vote of the sexual revolution. So now the priority isn’t just electing a Republican. He has to prove he’ll be just as committed to making good judicial nominations as the average Democrat.

That’s why Donald Trump was smart to release his list of proposed Supreme Court nominees. Though many things could have swung the election, given the closeness of the race, I’m confident about this: no list, no President Trump.

Having just described why it’s entirely right to be alarmed by judicial supremacy and why conservatives are right to be angry, it’s time to shift gears — to describe how the conservative reaction has sometimes morphed into a self-defeating overreaction, one that will do damage to the very causes conservatives, especially Christian conservatives, seek to advance.  

Proper constitutional doctrine is vital. The Supreme Court cannot act as a black-robed legislature, dispensing social justice as it sees fit. But proper constitutional doctrine rarely dictates specific cultural or political outcomes. Let’s take abortion, for example. The goal of the pro-life movement isn’t to restore originalist jurisprudence but rather to protect human life from conception to natural death.

Many Americans believe that reversing Roe would ban abortion. This is wrong. The Court could vote to overturn Roe, and abortion would still be legal across the length and breadth of the United States. After all, overturning Roe would return the abortion question to the political process, where different states would enact different laws. For example, only four states have passed post-Roe statutes indicating that they’d ban abortion if Roe is overturned. (A number of other states have pre-Roe abortion bans, but several are in blue states that would immediately protect abortion rights in the event of an adverse SCOTUS ruling.)

Thus, the fight for life transcends Roe. Decisive cultural change can diminish abortion dramatically even if Roe remains intact. At the same time, cultural permissiveness can enshrine abortion not just as a legal right but a noble act (remember “shout your abortion?”) independent of any court ruling. Given this reality, “child-abusing senators against Roe” strikes me as perhaps the worst possible message to a culture in desperate need of persuasion.

In fact, the political process can protect individual liberty even when the Supreme Court fails. Think of gun rights. Cultural and political change meant the loosening of gun laws across the United States before the Court’s landmark decision in District of Columbia v. Heller recognizing the obvious truth that the Second Amendment protects an individual right to keep and bear arms. And while Heller is important, overturning the case wouldn’t change a single state or federal law protecting gun rights — including the many laws that go far beyond Heller in protecting the right to self-defense.

The list of political remedies for the worst judicial decisions goes on and on. Statutes and regulations can protect religious liberty and free speech. State constitutions can play a vital role. Protest and activism can render illiberal changes too costly even for hostile lawmakers. Conservatives too often act as if a Supreme Court decision is the end of an argument. In truth, it’s often just the beginning.

Let’s take an issue near and dear to my heart — freedom of association. In 2010 the Supreme Court reached one of the most dreadful First Amendment decisions of the last 20 years. In a case called Christian Legal Society v. Martinez, it determined that — under certain circumstances — a public university can actually force Christian campus organizations to open themselves up to non-Christian, even atheist leadership. Freedom of association is a dead letter if you can’t even require your leaders to support and uphold the mission, values, and beliefs of an organization. Many of us feared that religious student groups teetered on the brink of a campus crisis.

Yet far from heralding disaster for religious freedom on campus, the decision barely rippled the waters. It turns out that not even deep-blue universities in deep-blue states have been able to sustain meaningful, active opposition to freedom of association. Christian student groups didn’t give up. They made arguments in the court of public opinion. They appealed to legislatures. They had dialogues with administrators. And they almost always won. Christian ministries are vibrant, active, and actually growing on college campuses from coast to coast.

If you make vile people your champions, you can’t be surprised if Americans begin to associate the cause with its advocates. 

Here’s the problem: Politics and activism take long, hard work. They require patience, persistence, and persuasion. But, ultimately, that process often results not just in political change but also in enduring cultural transformations. Given the constitutional atrocity of Roe, it’s easy to forget that it was connected to a potent cultural and political movement — one that still sways the hearts of tens of millions of Americans. The laughable reasoning of Obergefell shouldn’t distract from the fact that the argument for gay marriage had gained astounding cultural force in a remarkably short period of time.

Conservatives who want to protect life and preserve liberty must do much, much more than select the right judges, and they can’t sacrifice the larger cultural argument for the sake of any single nomination or series of nominations. “Sexual harassers for the Second Amendment” isn’t a compelling cultural message. If you make vile people your champions, you can’t be surprised if Americans begin to associate the cause with its advocates. 

The pro-life movement is among the most successful cultural and religious movements of the last 50 years. In the face of unified opposition from the key elite institutions in the United States — the academy, pop culture, and the courts — it has not only survived, it has thrived. By some measures, the current generation is more pro-life than their parents, and the number of abortions has declined even as the American population has grown, saving millions of lives.

It didn’t make this headway by wrapping its arms around credibly accused sexual predators. Its leaders and volunteers understood that regardless of the state of the law, they could save lives. And so they set about doing just that. Through their grace, their patience, and — most significantly — their love for women and children, they are helping change this nation. Any “ambassador” who is inconsistent with that ethos is a risk. An angry, defiant, and dishonest credibly accused child abuser is a disaster, a walking commercial for the other side. His one vote out of 100 simply isn’t worth the cost.

READ MORE:

A Supreme Court Term for the Ages

SCOTUS’ Choice: Preserve Constitutional Liberties or Detonate the Culture War

Evangelicals, Where Is Your Faith?

— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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