"Judicial Activism," "Precedent" and the (Unnamed) SCOTUS Nominee

President Trump announces his pick to replace retiring Supreme Court Justice Anthony Kennedy later this evening. And ever since Kennedy announced his retirement, the Left has been attacking the yet-to-be-named nominee.

Why?

Broadly, they attack because they do not want to see “precedent” overturned by a conservative-leaning court that they see as “activist”. More specifically, they do not want to see the key gains they made utilizing courts as their super-legislature overturned, including Roe v. Wade, the decision that constitutionalized abortion.

Will a Supreme Court made up of 5 conservative justices, a swing vote in Chief Justice John Roberts, and 3 liberal justices, overturn Roe? Who knows?

But the Left doesn’t like the odds.

So, they will pull out all the stops to smear, besmirch and ultimately destroy even the most qualified, experienced, erudite and compassionate jurist if they get the faintest whiff he or she could potentially help overturn Roe. Indeed, they already have. Just Google [insert well-known Democratic politician here] and “Supreme Court nominee” and you’ll see they have the long knives out before knowing who the nominee will be. Do the same for media figures and your head will spin.

Not only that, at least one senior Democrat senator, Dick Durbin, has implied “red state” Democrat senators actually sacrifice their seats to vote against whomever the nominee is.

Because everyone knows sacrificing their own careers is what successful politicians do.

As expected, beneath the Left’s howling din, we are hearing a lot about “activist judges” and the importance of “precedent.” These terms have become part of the vernacular but seem to mean different things depending on perspective. Do judges on the left engage in activist decisions while those on the right always show restraint? Are conservative justices more willing to disregard precedent?

When we look at the use of these terms, we see there is plenty of hypocrisy to go around on both sides. The Left’s hypocrisy is highlighted, however, because they are presently so blatant about it.

Most people believe an “activist judge” is one who substitutes his own opinion on what the law should be for what it actually is, displacing the authority of the legislature. That may be a brief dictionary-type definition. In our current political reality, a judge engages in activism whenever he reaches a decision that is contrary to the person who disagrees with it. This is because the judicial process has become entirely too politicized. A couple of cases illustrate this.

Conservatives view Roe v. Wade as the ultimate case of judicial activism, and it’s hard to blame them. Justice Harry Blackmun and the Supreme Court majority, in a terribly written 1973 decision, used a series of tortured arguments and analysis and found (eureka!) a constitutional right to abortion buried in the “penumbras, formed by emanations” from other cases (“precedents”). Roe renders the language of the Constitution virtually meaningless since anything can be found in penumbras formed by emanations.

More recently, conservatives caterwauled when Chief Justice Roberts twice upheld Obamacare. In National Federation of Independent Business v. Sebelius, the Chief authored the opinion joined by the four liberal justices essentially saving the law as a legitimate exercise of Congress’ authority to regulate interstate commerce. In doing so, the majority described the individual mandate as a tax despite repeated instances of President Obama, his administration officials, Democrats in Congress and even the solicitor general arguing in favor of the law to the Court contending and gesticulating it was not a tax. The Court’s opinion seemed to ignore the reality along with the legislative history and threw the ultimate life preserver. Conservatives tore their garments and decried the activist nature of the ruling.

Liberals, too, have their issues with “judicial activism.” Remember Bush v. Gore? Liberals still scream that the Supreme Court inappropriately handed George W. Bush the presidency over Al Gore by stopping Florida’s recount of presidential ballots. The Left doesn’t like to remember that the Court ruled 7-2—i.e. more than a bare “Republican” majority—Florida was violating the Equal Protection Clause of the Fourteenth Amendment because of unclear or inadequate recount standards. They do, however, like to point to the part of the decision supported by a bare 5-4 majority (including Justice Kennedy) that no recount could be completed before the federal statute’s deadline. The four dissenting liberals would have sent the case back to Florida to come up with specific guidelines for how to count disputed ballots, something that did not exist and would likely have taken months to accomplish—i.e. an activist remedy to craft standards that should have been in place before the election.

They also decry as activist the decision in Citizens United v. FEC, where a 5-4 majority (again, including Justice Kennedy) ruled the total ban on corporations buying ads expressly advocating for or against a particular candidate within 30 days of an election was unconstitutional. The Left views Citizen United as an activist decision made by a five GOP judges kowtowing to their corporate overlords.

Politics and governmental power drive the views of court decision on both the right and left. They also drive what is viewed as “activist” on both sides. Why? Because the balance of power has shifted strongly in favor of the judiciary.

Leftist advocacy groups figured out decades ago that many of the positions they supported, and changes to policy they wanted to make, were not popular enough with voters and government officials to run the legislative gauntlet. So, rather than work to change public opinion eventually to effectuate legislative change, they would find test cases, file suit in courts they believed would be the most sympathetic (read: activist) and work to change law through the courts.

It worked. Roe wasn’t the first such case and Obergefell v. Hodges, the 2015 decision constitutionalizing gay marriage, isn’t the last.

Interestingly, attitudes have changed on some controversial issues over time, sometimes in the left’s favor, sometimes against. For example, one cannot deny overall cultural attitudes toward homosexuality have become significantly more progressive over the last several decades. The change has been particularly acute since the mid-2000s as we have seen leftist politicians “evolve” their views on same-sex marriage. Yet, prior to Obergefell, thirty-six states had issued marriage licenses to gay couples. Public opinion was moving to the left as was the legislative climate. Whether this is the result of the Left’s court challenges, media agendas, protests and public activism, or some combination of these and other things is up for debate.

On the other hand, since Roe polls show public opinion on abortion has moved steadily toward favoring life and restricting abortion especially in the last 10 years. Right to life activists probably deserve some credit for successfully challenging the Left’s narrative on abortion. However, there are likely other factors that have helped sway public opinion, including advanced medical and imaging technology, the increased outspokenness of women who regret having abortions and of persons who either survived abortions as babies or were birthed by women who resisted pressures to abort, and reports exposing the practices of abortion clinics.

To hear the Left complaining about the unnamed nominee you’d think Armageddon was coming. Some in the media are so concerned about overturning precedent like Roe they’ve even suggested the life of Griswold v. Connecticut, the nearly 60-year old case that found a “right to privacy” in the Constitution, is at stake. This is rank hyperbole and fear-mongering, and an almost worshipful attitude toward precedent.

But, what is precedent? Basically, precedent is previously decided cases. Judges are strongly inclined to give deference to earlier decisions by other judges. The practical reason for this is so that there is some predictability in laws that are often drafted in general terms or otherwise open to interpretation.

Can judges be wrong? Of course. Even a majority of Supreme Court justices can be wrong.

Precedent can and should be disregarded or overturned if the reasoning was unsound, wrong, immoral or the resulting legal standard has become unworkable or is being applied unjustly. When the Supreme Court decided Brown v. Board of Education in 1954 determining “separate but equal” laws were unconstitutional, they overturned the precedent set by Plessy v. Ferguson, a decision written and joined by Democrat justices who were former southern slaveholders. Whereas the two Republican justices on the court when Plessy was decided dissented, the Brown justices voted unanimously 9-0.

Wasn’t Brown the right decision? If precedent is so sacrosanct to the Left, why aren’t they still bellyaching about Brown overturning the precedent set by Plessy? Because Plessy was a wrongly decided, immoral, racist decision and Brown corrected the error after far too many years of Jim Crow.

The Right believes the same things about Roe. Isn’t it possible Roe was wrong? Liberals forbid even the thought and treat abortion support as the equivalent of a sacrament. Yet would the Left complain if the Supreme Court decided to overturn the precedent set by Citizens United? On the contrary, they’d be cheering and toasting like Wolf Blitzer at the Democratic National Convention.

Yes, a more conservative court could reject Roe and permit the states to regulate abortion laws from conception forward, including possibly outlawing abortion altogether. Other precedents could also get overturned. And yes, precedent should be respected. But no precedent should be reflexively viewed as inviolate by the Right or the Left. And precedents don’t get overturned overnight, if they happen at all. The real reason the Left is so apoplectic is they've used the judicial system to get what they want and now they know Trump's nominee could tilt the Court conservative for decades. They will lose power and influence.

As the judicial system evolves into a super-legislature, inevitably the opinions of persons in black robes supplant the work of the people’s houses—the legislatures. The balance of power between legislative, executive and judicial branches tips toward the branch least accountable to the people. Politics then holds even more sway.

When the Constitution ceases to be a document whose words should be interpreted as written and instead becomes a “living, breathing” document that must adapt to the fickle vacillations of “modern” society and popular culture, it loses all meaning. If we wish to recognize the existence of new “rights," the Founding Fathers brilliantly provided an amendment process so the Constitution could adapt with society. The courts were never intended to be that vehicle.

So, the nomination is hours away. No matter who it is, expect the Left’s End Times, scorched earth narrative to continue unabated. Everything from abortion, to gay rights, to civil rights for minorities, to unions, to children’s lunch programs will be laid waste by “activist” Republican toadies, masquerading as judges, overturning precedent with the stroke of their pens to serve their racist, Luddite, corporate masters.

The reality is there is nothing the Left can do to prevent President Trump from getting his nominee approved. They can try to flip a couple of moderate GOP senators but there is no filibuster for judges anymore, thanks to Democrat and former Senate Majority Leader Harry Reid. And red-state Democrat senators up for reelection will be hard-pressed to sacrifice their seats no matter how aggressively Senator Durbin pleads.

The reality is if President Trump picks someone from his list, he will be choosing a jurist with appropriate experience, temperament and intelligence. And even if Trump doesn’t get his first choice, he’ll get his second. Or his third.

Elections have consequences.

Had the Democrats nominated a better candidate, they’d be the ones celebrating.