How Conservatives Should React to the Supreme Court

In response to defeats in cases including Citizens United, Hobby Lobby, and Ledbetter, many liberals chose demagoguery and partisanship over serious legal discussion. President Obama has already indicated that he intends to repeat this process if the Court rules against the administration in the King case later this month.

Conservatives will rightly be disappointed if the Court, in the King case, effectively rewrites the Affordable Care Act in order to justify upholding a flawed IRS interpretation, or if it concludes, in the Obergefell case, that the millennia-old definition of marriage is an unconstitutional expression of irrational animus. But they ought to avoid adopting the liberals’ myopic strategy of responding with partisan outrage. Instead, they should use such a decision as an opportunity to discuss the deeper constitutional issues in a sober and honest manner. Following such a strategy can yield enduring legal victories rather than transient political ones.

In Citizens United, the Supreme Court held that a corporation had a First Amendment right to produce a movie criticizing Hillary Clinton. Liberals responded by spinning wild tales about a corporate takeover of elections. They used the case as partisan fodder and succeeded in raising some money, but they utterly failed to persuade most Americans that their view of the First Amendment was correct. Very few people, upon hearing the actual facts of the case, agree that the government should have been able to prevent Citizens United from funding a movie about Hillary Clinton.

The attempt, after Hobby Lobby, to repeal or amend the federal Religious Freedom Restoration Act never amounted to anything. Subsequent religious-liberty cases — for example, Holt v. Hobbs — were decided without controversy. States like Indiana, Michigan, and Arkansas admittedly had trouble passing state RFRAs, but upon closer consideration those episodes indicate the failure of the liberals’ response to Hobby Lobby rather than its success.

The main argument against those states’ proposed RFRAs wasn’t that they were similar to the federal RFRA, which was the basis for the Hobby Lobby decision. In fact, the most successful attack pointed out how the proposed state laws differed from the federal law. Far from being tarnished by the liberals’ attacks, the law applied in Hobby Lobby became the model against which other RFRAs were measured. Once Arkansas removed provisions that were superficially distinct from the federal law, the controversy disappeared.

Democrats capitalized on the Ledbetter decision — which dealt with interpreting a statute of limitations — to pay off trial lawyers by passing a law, the Ledbetter Fair Pay Act, allowing plaintiffs to sue employers for conduct that allegedly occurred in the distant past. But one would be hard pressed to find anyone, other than the aforementioned trial lawyers, who remains deeply troubled by the interpretation of statutes of limitation. This was a minor partisan victory, albeit a distasteful one, not an enduring triumph of liberal legal principles.

Conservatives have to do better than that. First of all, they couldn’t follow the liberals’ cynical partisan strategy even if they wanted to. The public simply is not going to change its mind about same-sex marriage or the Affordable Care Act as a result of anything the Supreme Court decides this month. More importantly, taking a different approach may enable us to convey enduring lessons about our system of republican government.

If the Court announces a decision in King or Obergefell that disappoints conservatives, they should adopt the antithesis of the liberal strategy. This will involve carefully explaining exactly what the case holds and how the Court justifies that holding. In doing so, they must avoid hyperbole or the public venting of frustration.

If conservatives can persuade the American people that repeated application of the reasoning applied in the offending case would undermine America’s system of self-governance, they will secure an enduring victory for their constitutional principles. Questions about the role of courts in a constitutional republic have not been litigated ad nauseam in the popular media. People may therefore be more open to persuasion on those issues than on the substance of the ACA or same-sex marriage.

In response to an adverse ruling in King, conservatives could highlight the antidemocratic nature of allowing unaccountable executive agencies and judges to rewrite statutes to mean the exact opposite of the text passed by our elected representatives. Conservatives must demonstrate that even if people are pleased with the substantive outcome of the case, over the long term, such arbitrary governance is incongruous with most citizens’ views of American democracy.

In response to an adverse ruling in Obergefell, conservatives could point to the danger of Americans’ entrusting their rights to the unpredictable and ever-evolving inclinations of a handful of elites. Conservatives may not persuade their compatriots that creating same-sex marriage is a mistake, but maybe they can persuade them that a Constitution with a fixed meaning is both the best way to ensure self-government and the sturdiest protector of fundamental rights.

Conservatives should adopt this strategy of tackling the larger issues that underlie the most prominent cases the Supreme Court will decide this month regardless of the outcomes of the cases. If the Court declines to nationalize same-sex marriage, or to rewrite the ACA, conservatives will have an opportunity to demonstrate how the decisions strengthened our republic even if some people are unhappy with the immediate outcomes.

Such a strategy might be less satisfying than lashing out, but it should prove far more successful.