The next election will determine the direction of the United States Supreme Court and have a lot to say about its future. Given the outsized role its decisions play in the political life of the nation, that’s important and an issue worth voting on.
The court makes policy and law from the bench. Those who wrote the U.S. Constitution believed those functions were best left to the Congress, the president, and the states. To change that, to limit the ability of the justices to usurp the role of our elected representatives requires the addition of a justice or two who believe they are constrained by the law.
If Donald Trump wins, that’s the likely outcome. Given the precarious health of Justice Ruth Bader Ginsburg, he’ll probably get at least one appointment in his second term. And if that happens, and Chief Justice John Roberts is no longer the deciding vote on key cultural and legal matters, his recent flirtation with the court’s liberal wing might come to an end. It’s unlikely he’ll want to be on the losing side of decisions that come down 5-to-4.
If Joe Biden wins, things will go in the opposite direction, especially if Republicans lose control of the U.S. Senate in November. Then, free of any restraint the filibuster might have imposed, the Democrats could easily pass through Congress legislation packing the court with so many new members the center-right majority currently in place would quickly become a distant memory.
In that world, expect the most radical of ideas to be affirmed by a majority of 2-to-1. The new Biden judges would side with existing liberals to find within the Constitution everything from the right to abortion on demand at any time during pregnancy up to and including the onset of labor, the right to universal healthcare, free education, a guaranteed national income, and the abolition of the private ownership of most firearms. The democratic process would be subverted by activist judges more concerned about results than the law.
It would be the tipping point leading to the downfall of the American system. Accomplished quickly if not quietly, it would perpetuate the advance of progressivism for a century if not more. Those opposed to that outcome should tread carefully so as not to help the enemies of liberty get what they want.
Missouri GOP Sen. Josh Hawley, for some time considered one of the bright lights of the party’s future, has weighed in on this discussion in a big way. A state attorney general before winning his seat in the U.S. Senate he recently told The Washington Post he would “only vote for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.”
“By explicitly acknowledged, I mean on the record and before they were nominated,” he added. “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”
Taking that position publicly is, as one prominent conservative leader told me privately, “destructively stupid.” As a practical matter, more than one pro-life activist brought to my attention, on that one point Hawley could have voted enthusiastically to confirm Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter while being forced to oppose adding Clarence Thomas and Samuel Alito to the high court.
Admittedly our confidence in some of our judicial nominees has been misplaced. Dwight Eisenhower bungled things several times, not just by appointing Earl Warren as chief justice. Nixon, Reagan, and both Bushes made appointments they’d probably have liked to reconsider after they joined the court. The vetting process before the nomination is extremely important and must continue. Trump’s idea to release a list of potential nominees sets a precedent every other presidential candidate should follow. But vetting and litmus tests are two extremely different things. One has its place and one doesn’t, at least not among those who say they are proponents of intellectual freedom.
Hawley’s newfound insistence loads the gun the progressives will use, in the metaphoric sense, to shoot any nominee who’d possibly be any good from a pro-life, limited government, strict constitutionalist perspective. The senator’s heart may be in the right place, but the GOP is not the party that marches in ideological lockstep on every issue. That’s the other team. They’re the ones who use emanating penumbras to find things in the Constitution that Madison, Hamilton, and others didn’t put into it. They’re the ones who place political, social, and economic outcomes over the rule of law. That’s a major difference between us and them and Trump and Biden.