Catching up with Jim’s excellent Morning Jolt from yesterday, on the Supreme Court’s “legitimacy,” I had this thought: How remarkable it is that, through decades of progressive dominance, constitutional conservatives were expected unquestioningly to accept as legitimate a Court that imposed the Left’s policy preferences. That is, because liberal justices pretended to locate their pieties in penumbras formed by emanations from the Constitution, these rulings could not be challenged by democratic means in a democratic republic, including by legislation.
Now, with a constitutional conservative majority controlling the Court, conservative policy preferences are not being imposed. Instead, the Court is ceding back to the democratic processes the authority that, in a democratic republic, it should never have usurped. Unlike the progressive justices’ stance toward us conservatives, the constitutional-conservative justices are not telling progressives that they can’t have their policy preferences — even including abortion on demand. They are saying that the Court is stepping aside, such that progressives simply have to win in the political process, with the arguments that Democrats time and time again tell us are overwhelmingly popular.
Yet that, we’re now told, makes the Court illegitimate.