Of a sudden, government by judiciary isn’t working for them.

American Spectator
Doug Bandow


Who knew? Leftists have discovered to their horror that judicial government might not be good for them. Turning power over to judges might be a bad idea. Jurists can work for the other side. They can impose hostile values. They can undermine democracy. Someone needs to do something!

Slate recently hosted a debate among analysts over what to do about the looming threat posed by the horrid angry partisan Brett Kavanaugh. Having dominated the court for decades and relied on it to impose policy outcomes without popular support, they appear shell-shocked.

For instance, Slate’s Mark Joseph Stern warned that the newly confirmed Kavanaugh “will become part of a five-justice-conservative block that will swiftly roll back decades of progressive jurisprudence.” Alas, there is little evidence that any such reversal is likely, or likely to be swift — remember Chief Justice John Roberts’ determination to uphold Obamacare on grounds that even the left didn’t take seriously, that the program was a tax. Nevertheless, the imagined progressive golden age inaugurated by enlightened lawyers is going a-glimmering.

Given the fact that it has taken a half dozen GOP presidents decades to create a seemingly “conservative” majority, which has its own divisions over such issues as executive power and civil liberties, liberals shouldn’t whine. They have long enjoyed the benefits of an activist judiciary which only slowed down in recent years. It seems only fair for democratic change to eventually transform the court.

What most concerns Stern, however, is that the high court will do what it has always done, toss out measures which violate the Constitution: “[A]s soon as Kavanaugh takes the oath, he will plunge the Supreme Court into a legitimacy crisis that could weaken its power over the long term. This crisis will become particularly acute if Democrats retake Congress and the presidency but find their reforms stymied by a reactionary judiciary. The broad consensus over the court’s authority to interpret the Constitution will crumble.”

Yet the justices have been doing the same for years against more conservative governments. Courts have overturned policies involving welfare, criminal penalties, abortion, contraception, prison conditions, education, housing, zoning, employment, gay marriage, and much more. Stern acknowledged that because of Justices Sandra Day O’Connor and Anthony Kennedy, even the Republican-dominated high court for years “handed the left a stream of victories.” For many on the right, the judiciary long ago became illegitimate. There were efforts to impeach liberal Chief Justice Earl Warren. Right-leaning politicians proposed stripping the courts of jurisdiction over controverted issues. And activists made the membership of the Supreme Court a political issue.

But now, looking into the judicial future, liberals see Hades rather than paradise. So SOMETHING MUST BE DONE. Stern imagines “Democrats marching in the streets, demanding that the president and Congress ignore” rulings they don’t like. He projects Democratic officials implementing policies despite contrary high court rulings, rather like when President Andrew Jackson reportedly said of Chief Justice John Marshall, regarding a decision to protect Native Americans: “Marshall has made his ruling. Let him enforce it.”

Stern also embraces federalism. Maybe blue states will resist court rulings: after all, a lot of experience was gained as part of the South’s Massive Resistance against desegregation. At least Stern recognizes “the danger in adopting the tactics of segregationists,” but offers no alternative. Of course, he does not suggest that liberals, like conservatives before them, just suck it up and accept that there are consequences of losing elections.

Also in Slate, law professors Daniel Hemel and Christopher Jon Sprigman debated how “progressives should react to the right-wing takeover of the judicial system as heralded by the seating of Supreme Court Justice Brett Kavanaugh.” The University of Chicago’s Hemel argued that “we are a lot better off with the Supreme Court in its current form as a check.”

Indeed, noted Hemel, “progressive presidents sometimes trample over civil liberties.” For instance, he explained: “Take away the court’s power to strike down popular laws and we’re back to a world in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern.” With the high court most likely to fail the left by omission, not intervening to introduce a progressive paradise, he prefers “to have a court that sometimes underpolices than to have no cop on the beat.”

What to do? He proposes delaying the start of a justice’s term until the president appointing him or her leaves office.

Eh?

The idea is to ensure justices are not allied with the presidents who appointed them. But when has that been an issue? Richard Nixon lost 9-0 when the Supreme Court ruled on his attempt to use executive privilege to shield tapes of his Oval Office conversations. That’s not much of a left-wing agenda.

New York University’s Sprigman sees less reason to support the Supreme Court. He believes federal judges are “more likely to join in the attack” on American democracy. And he has little respect for supposedly leading progressive decisions. For instance, he recognizes that Roe v. Wade helped jump-start the modern conservative movement. What he really despises is constitutionalism and belief in limits on government. Wrote Sprigman:

Ultimately, the left would be well-advised to get over its unrequited crush on courts and judicial review, as well as the delusion that our old, terse Constitution has much to say about modern problems. It does not, and in any event, too much constitutionalism, like too much democracy, can be dangerous to self-governance and can even destroy a society. The surest and most durable route to progressive change is through the ballot box, and not the courthouse doors.
In response he suggests ending life tenure for judges, which actually is a good idea that the right should get behind. Sprigman urges court-packing by increasing the number of justices, but that only works once. Then it will be matched by the other side. Finally, he believes Congress should be able to overrule the judiciary, allowing it to declare that “notwithstanding” a court ruling, the affected law will take effect. Ironically, that is something many on the right once might have supported.

Sprigman’s fundamental error is to place democracy rather than liberty at the center of the political system. Turning political questions into judicial decisions “withers democracy,” he complains. True, but so what? Democracy is a means to an end, the best practical mode of governing a liberal, free society. But the end should be the free society.

We can only hope that Brett Kavanaugh’s arrival on the Supreme Court will result in the horrors of which the left warns: government as we know it will disappear, people will be free to live their lives as they wish, and impending progressive political triumphs will be thwarted. Unfortunately, the result is likely to be far more equivocal. Nevertheless, for now schadenfreude offers cause for satisfaction: after spending decades promoting government by judiciary, the left has discovered the wonders of democracy. Maybe eventually they will come to appreciate the value of liberty.

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quote:

Indeed, noted Hemel, “progressive presidents sometimes trample over civil liberties.” For instance, he explained: “Take away the court’s power to strike down popular laws and we’re back to a world in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern.”

Me thinks he could have chosen better examples.

The line in the sand is simple. Keep leftists away from the levers of power in Washington and there will be a measure of freedom and order for the country as a whole. Let them take control and we'll return to oppression by whatever means necessary, and chaos.

I just can't wait until Amy Barrett is nominated and confirmed. She's just a kid and will be on the Court for decades.

Then we'll see the complete and total meltdown of the commies.

quote:

Originally posted by Gustofer:
I just can't wait until Amy Barrett is nominated and confirmed. She's just a kid and will be on the Court for decades.

Then we'll see the complete and total meltdown of the commies.

Yes sir, that 6-3 conservative majority on the court sounds just terrific.

quote:

Originally posted by bigdeal:

quote:

Originally posted by Gustofer:
I just can't wait until Amy Barrett is nominated and confirmed. She's just a kid and will be on the Court for decades.

Then we'll see the complete and total meltdown of the commies.

Yes sir, that 6-3 conservative majority on the court sounds just terrific.

Almost too good to be true. Almost.

quote:

Originally posted by Spokane228:

quote:

Originally posted by bigdeal:

quote:

Originally posted by Gustofer:
I just can't wait until Amy Barrett is nominated and confirmed. She's just a kid and will be on the Court for decades.

Then we'll see the complete and total meltdown of the commies.

Yes sir, that 6-3 conservative majority on the court sounds just terrific.

Almost too good to be true. Almost.

Hope springs eternal but experience is more disappointment than triumph. We’ll have to see what happens.

quote:

Originally posted by bigdeal:

quote:

Indeed, noted Hemel, “progressive presidents sometimes trample over civil liberties.” For instance, he explained: “Take away the court’s power to strike down popular laws and we’re back to a world in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern.”

Me thinks he could have chosen better examples.

The line in the sand is simple. Keep leftists away from the levers of power in Washington and there will be a measure of freedom and order for the country as a whole. Let them take control and we'll return to oppression by whatever means necessary, and chaos.

Has to be the best post from you sir, I have ever read. Bravo bigdeal !

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Originally posted by JALLEN:

quote:

Originally posted by Spokane228:

quote:

Originally posted by bigdeal:

quote:

Originally posted by Gustofer:
I just can't wait until Amy Barrett is nominated and confirmed. She's just a kid and will be on the Court for decades.

Then we'll see the complete and total meltdown of the commies.

Yes sir, that 6-3 conservative majority on the court sounds just terrific.

Almost too good to be true. Almost.

Hope springs eternal but experience is more disappointment than triumph. We’ll have to see what happens.

Waiting is always the hardest part.

We never have to guess what the Left is up to. Whatever they accuse the conservatives of doing, or trying to do, you can be certain it is actually what Left is doing, or attempting.



.

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Originally posted by Balzé Halzé:

quote:

Originally posted by JALLEN:



Hope springs eternal but experience is more disappointment than triumph. We’ll have to see what happens.

Waiting is always the hardest part.

It is said that the major purpose of time is so everything doesn’t happen at once. Waiting is therefore unavoidable. QED

quote:

Originally posted by bigdeal:

quote:

Indeed, noted Hemel, “progressive presidents sometimes trample over civil liberties.” For instance, he explained: “Take away the court’s power to strike down popular laws and we’re back to a world in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern.”

Me thinks he could have chosen better examples.

Those are prefect examples, and you're distaste for them is precisely why. Remember, this is all about freedom to live how you see fit.

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Originally posted by FenderBender:

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Originally posted by bigdeal:

quote:

Indeed, noted Hemel, “progressive presidents sometimes trample over civil liberties.” For instance, he explained: “Take away the court’s power to strike down popular laws and we’re back to a world in which flag burning is banned, the Pledge of Allegiance is mandatory in schools, the press is subject to prior restraint, and public employees are prohibited from speaking out on matters of public concern.”

Me thinks he could have chosen better examples.

Those are prefect examples, and you're distaste for them is precisely why. Remember, this is all about freedom to live how you see fit.

We'll have to politely agree to disagree on that topic.

quote:

Originally posted by bigdeal:
The line in the sand is simple. Keep leftists away from the levers of power in Washington and there will be a measure of freedom and order for the country as a whole. Let them take control and we'll return to oppression by whatever means necessary, and chaos.

Yes.

But if they are honest, they have nothing to fear from Kavanaugh or from Constitutional conservatives. We believe in limited government. That protects the rights of everyone, including leftists.

What they fear is losing the 'right' (opportunity) to plunder their fellow citizens. We don't seek to take from them.

quote:

Originally posted by Balzé Halzé:

Waiting is always the hardest part.

There ain't no easy way out.

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Originally posted by FenderBender:
Those are prefect examples.

Spoken with authority.

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Originally posted by RichardC:

quote:

Originally posted by Balzé Halzé:

Waiting is always the hardest part.

There ain't no easy way out.

Well I won't back down.



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The hell of it is, though, that conservative jurists will not impose measures that their compatriots couldn't get though Congress. They will not be the victims of judicial legislation the way it was practiced by the Warren Court, and for some years even after Warren was gone.

But let them stew in their own juices in fear of what might happen. This Court may help be a buffer against the worst excesses of the GDCs.

quote:

Originally posted by jhe888:
The hell of it is, though, that conservative jurists will not impose measures that their compatriots couldn't get though Congress. They will not be the victims of judicial legislation the way it was practiced by the Warren Court, and for some years even after Warren was gone.

But let them stew in their own juices in fear of what might happen. This Court may help be a buffer against the worst excesses of the GDCs.

And a 6-3 majority would be an even more successful buffer. Come on Ruthie... He's a callin' ya home.

quote:

Originally posted by jhe888:
The hell of it is, though, that conservative jurists will not impose measures that their compatriots couldn't get though Congress. They will not be the victims of judicial legislation the way it was practiced by the Warren Court, and for some years even after Warren was gone.

But let them stew in their own juices in fear of what might happen. This Court may help be a buffer against the worst excesses of the GDCs.

Exactly!

quote:

Originally posted by jhe888:
They will not be the victims of judicial legislation the way it was practiced by the Warren Court, and for some years even after Warren was gone.

True, but despite Kavanaugh's and others' respect for precedent, I'm still pretty thrilled to see attorneys be given a chance to undo some of the excesses the court indulged in from the Warren era onwards. Just as the Dems saw the courts as an alternative way to (effectively speaking) legislate, so too are there both legislative and juridical paths open now to unwinding the mistakes of the past.