The Battle for the Supreme Court

John Rabe

        Supreme Court nominations have become perhaps the central battle ground in American politics. As America faces another confirmation to fill the seat of the late Justice Antonin Scalia, each side is gearing up for all-out warfare.

        But it might surprise you to be reminded that it was not always this way. In fact, Justice Scalia himself, one of the most controversial (albeit brilliant) justices in Supreme Court history, was confirmed by the Senate in 1986 unanimously, 98-0. For over half a century before that, the only nominees who failed to receive Senate confirmation were two appointees of President Nixon, who were both believed to have favored racial segregation and who were both rejected by bipartisan majorities. Meanwhile during that period, 30 new justices were nominated and confirmed by the Senate for the high court—16 of them by voice vote alone.

        But that all changed in 1987, when Senator Ted Kennedy launched a scorched earth attack on one of Ronald Reagan’s Supreme Court nominees, Robert Bork, introducing a new word into our language: “[to] bork,” defined by Merriam-Webster as, “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”

        The reasons why this attack took place are vital to understanding the modus operandi of the American left, even up to the present moment.

        The Constitution of the United States, in its very first provision—Article 1, Section 1, places the power to make laws in the hands of the Congress, the representatives of the people. It gives the Supreme Court “the judicial Power of the United States” to decide cases arising under the Constitution and federal law. The famous Marbury vs. Madison case of 1803 decided that this included “judicial review”—the idea that the Court had the authority to determine whether a given law accorded with the Constitution or was unconstitutional.

        However, in the 20th century, a legal theory with its roots in Darwin’s theory of evolution gained ascendancy. For decades after Darwin, there were movements to apply his theory to areas of life outside of biology. In law, this led to the idea that the Constitution was a “living document” or an “organic Constitution,” which was evolving. Dressed in a pseudoscientific costume, this theory drew many adherents and is now the dominant theory of the Constitution taught at every level from kindergarten to the final year of law school.

        According to this notion of a “living Constitution,” the document is antiquated, having been written hundreds of years ago by men who knew nothing about our day. With new circumstances, developing technology, and advances in knowledge, the meaning of the provisions of the Constitution must change over time. This theory ignores the intent of the writers of the Constitution, who very clearly intended for it to be interpreted as written and included a very specific process for changing it with changing times—the amendment process. Instead, judges, particularly those on the Supreme Court, have taken upon themselves to determine new interpretations for the Constitution to suit new situations and adapt it to the current day.

        The problem with this approach should be evident—and has been demonstrated over and over again. If judges get to decide the “evolving meaning” of a law or a constitutional provision, then the opinion of the judge takes precedence over the text of the law or provision itself. If a judge is given the power to be an authoritative interpreter of the Constitution and invested with the power to help it evolve, we are not actually ruled by the Constitution, but by judges.

        The American progressives, who were the originators of the theory of the “living Constitution” in the first place, were quick to capitalize on this understanding in order to implement their own ends. Rather than persuading the American people to pass laws through the legislative process, they began to focus their efforts on the federal courts. They got the Supreme Court to discover a “right to privacy” in the “penumbras formed by emanations” (in the words of liberal Justice William O. Douglas) of the Constitution. This judge-invented concept then provided the basis for the 1973 Roe vs. Wade decision legalizing abortion on demand—and the Left accomplished it without ever having to win a single legislative vote. (More recently, they made sodomy and then same-sex “marriage” constitutional “rights” by the same means, without any Americans having voted either directly or through their representatives.)

        In 1987, Justice Lewis Powell retired from the Supreme Court. Powell was considered a “swing vote” on the Court, often handing liberals wins on such issues as Roe and several high profile death penalty cases. When President Ronald Reagan nominated Judge Robert Bork (an opponent of the “living Constitution” concept who believed in adhering to the original meaning of the document) to succeed Powell, the Left declared all-out war. If Bork were to have been confirmed, it would have changed the balance on the court for decades, releasing it from the grip of advocates of the “living Constitution” dogma.

        The situation that led to the “borking” of Robert Bork still exists today. The American Left still relies primarily on the courts for implementation of its agenda. The Court is narrowly divided, and many of its decisions come down by a 5-4 vote, such as the Obergefell same-sex “marriage” case. Thus, control of the Supreme Court is one matter on which progressives cannot and will not compromise. It remains to be seen how they will treat the nomination of Judge Neil Gorsuch to replace Antonin Scalia when hearings begin. Because Scalia famously argued against the idea of a “living Constitution” (once declaring, emphatically, “I like my Constitution dead!”), the confirmation of Gorsuch would merely maintain the status quo, which still favors the Left. Nevertheless, in the wake of his nomination, a number of left-leaning leaders immediately proclaimed him “dangerous” and indicated they were spoiling for a fight. House Democratic Minority Leader Nancy Pelosi proclaimed the nomination “a very hostile appointment.” Judge Gorsuch could face a very difficult battle for confirmation.

        But if the Left relents, it will only be because they are saving their powder for the next nomination, which very well could tilt the court in a new direction. If President Trump were to have the opportunity to replace Justices Anthony Kennedy or Ruth Bader Ginsburg—both of whom have ruled with the majority on progressive pet issues, and both of whom have been the subject of swirling retirement rumors—with a new justice who adheres to the text of the Constitution, a key liberal powerbase would be jeopardized. In this case, we will likely see a nomination war that makes the “borking” of Bork seem tame by comparison. The present Supreme Court, which allows progressives to implement their agenda without the consent of the people, is the whole ballgame for the American Left, and they will treat it as such.