The Supreme Court’s Constructionist Era

Associate Justice Anthony Kennedy has announced his retirement and kicked up a political storm. Kennedy has been a critical swing vote for the left on social issues and the right on other legal issues. President Trump said he will pick a justice from his short list of 25 candidates who will “interpret the Constitution as written;” quoting President Ronald Reagan. President has announced the nomination of Brett Kavanaugh. How will the appointment impact issues like abortion and the progressive social agenda? What is in the Court’s future? At this critical moment of transition, let us pause and consider the ramifications before moving forward.

Kennedy’s Complex Legacy

The decisions the court has rendered recently demonstrate well enough Kennedy’s independence and willingness to break with either side to render decisions as he likes them. Kennedy swung for gay marriage in Obergefell v Hodges that established homosexual marriage as a right while he went against such activism in supporting a Christian baker’s right to freedom of conscience in denying special services to a homosexual couple in Masterpiece Cakeshop Ltd. v Colorado Civil Rights Commission. He also upheld President Trump’s travel ban from countries known to be dangerous, many but not all of which were majority Muslim countries. Kennedy went against Unions recently in Janus v AFSCME preventing them from collecting “collective bargaining fees” from public employees that in several states essentially amounts to a backdoor union membership mandate for all public employees. Kennedy has supported the 2^nd Amendment in several cases, defended affirmative action (but not quotas), defended access to abortion and opposed attempts by states to regulate or restrict the practice, and generally found in favour of the progressive social agenda, without going it too far.

The court is now made up evenly of four constructionist justices and four activist justices. Constructionists believe the court should not overreach its role as a judicial arbiter by advancing a social or political agenda. Activists, by contrast, believe the court should boldly rewrite the laws and advance leftwing causes. For activists, the cause of “social justice” rises above the importance of the Constitution, established law, or the will of voters as expressed in federal, state, and local elections. The current constructionist camp is made up of Associate Justices Clarence Thomas, Samuel Alito, and Niel Gorsuch, the last of them was nominated by President Trump and confirmed by the Senate only last year; and Chief Justice John Roberts. In the activist camp are Associate Justices Ruth Bader-Ginsburg (RBG), Stephen Breyer, Sonia Sotomayor, and Elena Kagan; the last two being President Obama’s nominees. Associate Justice Kennedy’s seat thus swings betwixt the two camps. The justice who fills this seat will determine the court’s course for nearly a generation.

Justice Thomas was appointed by President George HW Bush Sr in 1991. He just turned 70 years old and can easily sit on the court for ten or fifteen more years. Justices Roberts and Alito were appointed by President George HW Bush Jr in the aughts, both are young and have the potential for twenty to thirty more years of service. Gorsuch just joined the court. A young constructionist justice like Kavanaugh (53) can thus keep the court in conservative hands for fifteen to twenty years.

Brett Kavanaugh

Justice Brett Kavanaugh has a strong record having served on the United States Court of Appeals of the District of Columbia Circuit for over twelve years. At least a dozen of the decisions he made were later upheld by the Supreme Court and are the law of the land. It is doubtful that a more qualified candidate for the court exists in Justice Kavanaugh’s age range. Kavanaugh may not be the most exciting pick for the high court, but he is certainly among its most qualified. The Senate must confirm Supreme Court nominees chosen by the President. Senate Democrats are already faced with a quandary: they do not want a constructionist majority on the court, but neither do they want to vote against the President’s nominee. Several Democrat Senators are running for reelection this November in red states wherein Trump won by double digits. A vote against Kavanaugh might doom their candidacy. Senate Minority Leader Charles Schumer (D-NY) has already stated he wants a “clear answer” from any nominee on Roe v Wade signaling the decision of the Democrats to set a litmus test; in the past they have spoken against such tests. Senate Democrats may be signaling their intention to hold up the nomination. Senate rules require a 60 vote majority to close debate and bring a vote. Senate Majority Leader Mitch McConnell (R-KY) may have to rely upon the so called “nuclear option” and hold a vote where only a majority is needed to confirm the nominee. It would be unfortunate if Vice President Mike Pence had to cast the tie breaking vote. To learn more about Justice Kavanaugh click here.

The Roberts Court

Some have argued that Chief Justice John Roberts is a second swing vote because of his vote on the question of Obamacare’s constitutionality. His swing vote allowed the law to go into effect because the requirement to buy healthcare (individual mandate) was recast legally as a tax. Yet, this decision decided none of the plethora of other major legal challenges to the law. While everyone knows the law was unconstitutional, the question of why Chief Justice Roberts swung to keep it on the books remains one of controversy among conservatives. The independence of the Justices was why the Framers granted them life terms, after all. Chief Justice Roberts has been a reliable constructionist in every other opinion. Why did he vote to prevent Obamacare from being struck down?

For those who paid close attention to John Robert’s judicial philosophy, the Obamacare decision was not a great surprise. In his confirmation hearing John Roberts stated the following:

“Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

Chief Justice Roberts believes it is the role of the elected branches of government to make the laws and policies why the court reviews and makes certain each branch is playing according to the rules. This is the proper role of the court as defined by the Framers, and critically by Alexander Hamilton and his scion Chief Justice John Marshall. It is the left that has been using the court to drive the law to their benefit defeating the popular will through judicial activism. Roberts wants to see the court step back from its role as the arbiter of all social and political issues in the United States to allow the elected branches to address those issues. Essentially, he wants to turn over the political decisions to the President and Congress, and state and local governments, who are ultimately answerable to the voters. Justice Kavanaugh is likely to help the Chief Justice in this goal of keeping the court out of controversy and the political spotlight.

Obamacare is a matter for Congress and the President, for the court to strike it down, bad law though it might be, would merely be a conservative version of judicial activism. The implementation of Obamacare has demonstrated to the public that universal healthcare schemes are detrimental. The GOP has benefited from Robert’s vote by gaining control of the Senate in 2014 and the Presidency in 2016. If not for Justice Roberts wise decision, President Obama and the left would have been relieved of the burden of having to implement a poorly written law and would have been handed a wedge issue to drive voters to the polls in the coming years. They would have latched onto national healthcare, the so called “single payer” system, and begun agitating for that instead. The Roberts court will be one that decides legal matters that truly belong before the court. In the long run, the GOP will gain considerably from this shift in that it controls the other three branches and most states and will be in a position to drive policy throughout the US without interference from an activist court.

Since Justice Kennedy announced his retirement, the left has been complaining that Trump’s nominee will disregard the judicial doctrine of Stare Decisis and reverse existing law. Stare Decisis is a doctrine that holds the court to be bound by the precedent of previous decisions. Yet, if the court had truly been bound by precedent many landmark decisions for the social progressive agenda would never have been made. If the court decisions the left wants to defend are sound law, then they are in no jeopardy. If they are poorly made decisions that have a weak legal foundation, they should be reversed. In Plessy v Ferguson the Court decided that racial groups could be segregated by law so long as the facilities were “separate but equal.” The left frequently celebrates the opinion of the Warren Court that reversed that precedent. If Roe v Wade, which established abortion as a “right,” is so sound a decision as the left believes it to be, it should be in no jeopardy.

The truth is, those on the left know the opinion in Roe was poorly reasoned and stood on very shoddy ground. The reversal of that decision in its entirety, is unlikely, but restrictions on abortion are likely be upheld in the future. A 20-week ban has been debated by Congress and several states are considering bas after the first trimester. Without Justice Kennedy on the court, decisions will likely cease to protect abortion quite so actively. A Texas law establishing health regulations for abortion clinics was recently struck down thanks to Justice Kennedy’s swing vote. In the future, laws like this are likely to stand. In time, the US will move closer to the European system where abortions are performed by real doctors in actual hospitals and there are many restrictions that apply. A complete overturn of Roe v Wade would take time and a test case in any event.

Over the Horizon

It is well known that Justice Ruth Bader-Ginsburg (RBG) is aging and in less than stellar health. At 85 years of age in a sane world it would be she who was retiring this year rather than Kennedy. Politics drives her refusal to leave the bench much as it did for John Paul Stevens who held on to his seat on the bench to wait out the second Bush Administration in anticipation of the Obama presidency. Ginsburg is sadly mistaken, however, if she believes she can easily outlast President Trump or his legacy. The Democrat Party lacks even a competent candidate to stand against Trump in 2020 and has yet even to begin developing a truly hopeful candidate for 2028 to face Trump’s successor in the GOP. It is thus likely, that Ginsburg’s seat will be filled at some time during President Trump’s second term, or perhaps early in the first term of the next Republican President. Justice Stephen Breyer is not a spring chicken either, he will turn 80 next month. In the next decade he may choose to retire as well. The result could mean a 7-2 majority for constructionist justices.