The Authoritarian Left Wing of the Supreme Court

By: Tho Bishop
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The retirement of Justice Anthony Kennedy has cranked up DC political hysteria up to 11. When we have grown adults weeping in their offices over the retirement of a judge, it is perhaps high time to question whether any group of nine individuals should ever have so much power over the political landscape. Ryan McMaken was making this very case in the aftermath of Antonin Scalia’s passing:

We’re told by pundits and politicians from across the spectrum how indispensable, awe-inspiring, and absolutely essential the Supreme Court is. In truth, we should be looking for ways to undermine, cripple, and to generally force the Court into irrelevance….

If Americans want a government that’s more likely to leave them in peace, they should ignore the pleas to elect another politician who will just appoint another donor or political ally to the court. Instead, state and local governments should seek at every turn to ignore, nullify, and generally disregard the rulings of the Court when they run counter to local law and local institutions where — quite unlike the Supreme Court — average citizens have some actual influence over the political institutions that affect their lives.

Interestingly enough, his idea of Congress stacking the courts – in order to erode the perception of the Supreme Court as a non-political actor – is even gaining traction in interesting circles.

With the stakes now seen as being so high, the Democratic Party is faced with a great deal of Monday morning quarterbacking on how they handled the post-Scalia vacancy. Most now concede their hubris got the best of them in assuming Hillary Clinton would now be president and that Gorsuch’s vote would be held by a judge to the left of Merrick Garland. Their clear strategy now is a desperate attempt to portray Mitch McConnell as a hypocrite for pushing a court nomination on an election year. This strategy will obviously fail because McConnell is a known hypocrite and politics is simply about power – not legislative norms.

When this effort proves to be futile, my guess will be that the next strategy will be confrontation. Similar to what we’ve seen this morning with protests outside of Washington Immigration Control Enforcement offices, the activist base of the Democratic Party will take to the streets while their allied pundits will make Kennedy’s replacement out to be the last stand for the civilized world. This will be the third or fourth installment of a franchise even more tired than Star Wars: a battle between the brave #resistance against an authoritarian Trump regime determined to erode the rights of all Americans who are not white, male, and straight.

This particular chapter in the “authoritarian threat” story becomes all the more amusing when we consider this past Supreme Court session. As Sean Davis of The Federalist astutely noted, three of the most significant cases on this year’s docket saw the “liberal” wing of the court vote in favor of forced participation:

NIFLA v. Becerra, a 5-4 decision, defended the right of anti-abortion pregnancy center from being legally required to provide information about abortion services, overturning a 2015 California mandate. The significance of this legislation isn’t only major for the issue of abortion, but has larger ramifications preventing government mandates in other medical prescriptions.

Janus v. AFSCME, another 5-4 decision, protected government non-union members from being obligated to pay union dues against their wishes. Obviously no institution should have that right (even government), which led to employee dollars going to help promote causes – including political campaigns – they personally objected to.

Masterpiece Cakeshop v. Colorado, the infamous gay wedding cake case, was another clear example of forced participation. While this was a legal victory for the bakers involved, the decision itself became rather narrow and philosophically hollow – focusing on the actions of the Colorado Civil Rights Commission’s and their clear hostility to the Christian faith. As such, Justices Kagan and Breyer joined the majority. This only makes the opposition of Justices Ginsberg and Sotomayor all the more alarming. (In the defense of all four members of the Court’s left wing, they did vote with Justice Roberts in Carpenter v. United States – an important electronic privacy case. It should go without saying that authoritarian impulses do not lie solely with the robes from the left.) 

So, once again, what should be made clear here is that the left is not concerned about “authoritarianism”, but simply rather losing the ability to enforce their will on the public. In their defense, this response is a fair and reasonable concern – no people should be forced to live under a government explicitly hostile to their world views.

So what should a political minority do? Perhaps start by reading some Jeff Deist.  

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