What is sacrosanct? Whatever advances progressive causes.

National Review
Victor Davis Hanson


1) Right to Left. The majority of post-war Republican Supreme Court nominees, who were initially perceived as conservative, turned liberal on the bench (Harry Blackmun, William Brennan, David Souter, John Paul Stevens, Earl Warren), or went from right-wing to center-right or centrist (Warren Burger, Sandra Day O’Connor, Anthony Kennedy, John Roberts). Perhaps the pressures of approval from the liberal social and political culture of Washington, D.C., becomes finally overwhelming. Or justices sense that the liberal media and historians will praise and memorialize a “maverick” who “grows,” “matures,” or “evolves,” while dismissing a “recalcitrant,” “hard-core,” or “reactionary” justice who remains a strict constructionist. A conservative president perhaps realizes that he will get more praise from the Left than blame from the Right when his malleable nominee bolts and become progressive. The ongoing liberal political reassessments of Ronald Reagan and George H. W. Bush in part came from their nominations of Justices Kennedy, O’Connor, and Souter. Or perhaps as we age we all tire a bit and cave to popular pressures and prefer “to just get along” in our sunset years. Controlling the culture — and the threat of ostracism from it — is a powerful tool in massaging political ideology.

2) Never Left to Right. In contrast, few Democratic nominees become centrist or conservative. To do so would be to suffer something like the “Dershowitz effect” that brands independent-thinking liberal legal scholars, such as Harvard law professor Alan Dershowitz, who remain progressive but honor the law, as veritable traitors and pariahs. Most Democratic justices arrived at the Court either from the academic world, the bureaucratic state, or private legal practice — all overwhelmingly liberal environments. They certainly realize that university appearances, favorable media coverage, and legacy and historical memorialization all hinge on remaining liberal or intensifying their liberal fides. Moreover, vote against Second Amendment rights, and no right-wing zealot is going to corner you at a D.C. bistro. But vote against Roe v. Wade and be prepared to have enraged leftists camped on your Chevy Chase lawn yelling “traitor!” and “fascist!”

3) Swing Vote. A swing vote is usually a Republican who on occasion votes in a progressive mode. Kennedy supposedly had institutionalized his swing seat to the point that progressives assumed that his billet was an inheritable permanent swing slot — as long as the Court was divided and Congress was in Republican hands. In contrast, no one could ever assume that a Justice Kagan or Sotomayor would become a swing voter. This is also no such thing as a “swing” seat when there are five progressive justices on the Court.

4) The Ginsburg Rule. It’s now permissible for liberal nominees to speculate on future Court cases, or decline to speculate, whichever helps them most. Liberal nominees fearlessly showcase their progressive fides on affirmative action, abortion, or gay marriage when their confirmation vote is assured; if the Senate is closely divided between left and right, however, they claim they cannot comment on individual hypothetical scenarios. Republican nominees, if retreating to the “Ginsburg Rule” to decline comment will be damned as being “evasive,” “stonewalling,” or “deceptive.” If they’re candid about their views (on the assurance they will be confirmed), they are then slurred as “divisive,” “brazen,” or “scary”.

5) Better Than the Congress. Liberals see the Court as a political institution; conservatives, more as an arbitrator of laws and guardians of the perceived original intent of the Constitution. As in the case of the military (that can by fiat include women in combat units, green-light gays in the military, or enhance transgendered recruitment), liberals appreciate an institution that can bypass the messy process of legislation in a constitutional republic and short-circuit the clingers, deplorables, and irredeemables and their often-Neanderthal, obstructionist representatives. Too often, the red-staters vote supposedly against their own interests and are not capable of seeing, much less voting for, what is good for them. Instead, a majority of highly educated “apolitical” elite minds can perform the role of Platonic Guardians. As “wise men and women,” justices by fiat override both presidential executive orders and congressional and state legislation to do what is “good” for Americans even if the beneficiaries at present are either unwilling or unable to appreciate their betters.

6) Gaffes. There are no liberal judicial gaffes. Any written or spoken word in a conservative justice’s past is seen as a window into his or her dark heart. Not so with liberal nominees. If Sonia Sotomayor has stated that a justice’s innate competence often rests with her ethnic or gender status, it is considered either irrelevant or a cry of the heart:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Ruth Bader Ginsburg has claimed that abortion was a valuable institution because it ostensibly targeted inordinately the poor and non-white:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.

In the summer of 2016, she intervened in an ongoing presidential election to say of the Republican nominee:

I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. . . . For the country, it could be four years. For the Court, it could be — I don’t even want to contemplate that.

She, of course, would almost immediately rule on a number of Trump executive orders. Mutatis mutandis, a Republican nominee would have been asked to withdraw or, if confirmed, to step down had she said anything similar to Sotomayor’s or Ginsburg’s comments.

7) Stare Decisis. The Latinate advisory “to stand with prior decisions” does not really hold sway. It is now a trite catch phrase, not a judicial protocol. For liberals, precedent means little if it was not liberal, but everything if it was. Roe v. Wade at the time was acclaimed as a “landmark,” “historic,” and “path-breaking” decision that overturned all precedents; but to even modify Roe today would violate the sanctity of Supreme Court precedent. So stare decisis really is fluere decisis — to flow with prior decisions, to reject or honor them as the present necessity deems past precedent either expedient or an impediment.

8) The Law Follows Reality. In the progressive legal mind, popular culture and collective progressive habit need a law to sanctify reality. The neo-Confederate idea of sanctuary cities does not nullify the Constitution because they are useful to the open-borders movement. By contrast, a travel ban against countries deemed unable to verify the passports and records of their citizens would be unconstitutional, given the perception that it falls inordinately on unstable Muslim-majority nations. The legality of gay marriage or abortion depends entirely on how popular or acceptable to the public such trends have become, or how useful such changing protocols are to political ends. The constructionist idea in contrast believes that the spirit of law exists across time and space and predates popular practice. The law is immune from considerations of whether it enhances or retards progressive change. When the Court bucks popular culture, it is derided as little more than the cranky work of “nine old men”; when it accelerates perceived social justice, then the justices become “far-seeing,” “lively,” “engaged,” and “spirited.” When nine justices rule progressively, they are properly shielded from popular passions and benefit from their separation from the politics of the day; when they don’t, they are “out of touch” and “clueless” to the world about them.

9) Pressure Groups. Liberal legal experts at CNN or NPR, the ACLU, trial-lawyer associations, university law schools, and judicial activist groups all play a necessary role in apprising the public of the ideological landscape of the Court. As didactic and objective helpers, they purportedly inform justices of arguments that they may not yet have fully appreciated. Conservative counterparts, on the other hand, such as the Federalist Society, are improper, polarizing, politicized, and harmful in their “collusion” in and “contamination” of the judicial process owing to their “litmus-test” rigidity.

10) Stare Legibus? There is no such allegiance to conducting the Supreme Court according to its constitutional origins and mandate. When it proves disruptive to progressive change, then it should be “packed” and reformulated by liberal reformers. New amendments to the Constitution during a Democratic presidency would wisely increase the number of justices and thereby marginalize reactionary holdovers. The “advise and consent” of the Senate can mean either a filibuster-proof vote, a simple majority, or in theory just talk and no vote at all — all depending on the political make-up of the bench at any given time, and the role of a nominee in potentially changing the ideology of the Court. For the last half-century, the Supreme Court’s liberal majority made the Court the iconic “crown jewel” of American democracy. With Trump’s two conservative picks, and a possible third in the next two years, the Court will soon be recalibrated as the costume jewelry of the Constitution — widely derided as an antiquarian relic, analogous to the ossified Electoral College or the parochial idea of two senators for each state regardless of population size.

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Yes.