Changes in the US Supreme Court

The retirement of Justice Anthony Kennedy from the US Supreme Court aged 81 has sent liberals into meltdown, with some reacting as if he’d committed high treason. The reason for this is Donald Trump gets to nominate his successor, and he’s likely to choose someone conservative. That the Supreme Court is seen as divided between conservatives and liberals, and such importance is placed on what sort of judge is appointed by a sitting president, strongly suggests that it’s simply another political branch of the government rather than an impartial arbiter of the law. Indeed, a lot of liberals are now worried the balance of the Supreme Court is going to lean towards those who interpret the constitution faithfully, as opposed – presumably – to those who imagine what the document’s authors would prefer were they around today.

This most recent session of the Supreme Court has been interesting, but also rather worrying. Two cases – Janus v. State, County, and Municipal Employees and Trump v. Hawaii – were ruled 5-4, and when you read  the dissents it’s clear some judges are simply political operatives. The two worst offenders are Elena Kagan and Sonia Sotomayor, both appointed by Barack Obama. Janus concerns the practice of forcing all non-unionised public sector workers to pay union dues regardless of membership, on the grounds that non-members receive the benefits negotiated by the union. It’s long been the case that unions have used these funds to campaign politically, almost always on behalf of the Democrats, and now the Supreme Court has ruled the compulsion unconstitutional. Here’s what Elena Kagan said in her dissent:

Basically, she’s dissenting not on the grounds of law and constitutionality but because public sector unions, on whom the Democrats are dependent for funding, will now lose money. The best that can be said about this is it’s at least refreshing in its honesty. Here she is again in the same dissent:

That’s right: the Supreme Court should not strike down “citizens’ choices” which are unconstitutional (i.e. illegal), and the First Amendment was supposed to make governing easier and help public sector unions.

Trump v Hawaii concerned the so-called Muslim Ban, a term Trump’s opponents used to convince people that the temporary restrictions he placed on people from 6 countries with no functioning government (Iran excepted) was motivated by anti-Muslim bigotry. Never mind that citizens from Indonesia, Pakistan, and Bangladesh – the three countries with the largest Muslim populations – were not affected, the mud was slung and it stuck, and it appears even Supreme Court judges bought it. The SCOTUS ruled – sensibly – that restrictions on immigration falls within the constitutional authority of the President regardless of speculation as to his motives, but Sonia Sotomayor – the self-described “wise Latina” – dissented:

Reading Kagan and Sotomayor’s dissents in these recent cases reminds me of Andrew Adonis, the mate of Tony Blair who was appointed to the Lords and is now vociferously campaigning to overturn the Brexit vote. All three are intellectual lightweights appointed in turn by intellectual lightweights, and none appears to fully grasp the positions in which they now find themselves. And this is the problem with liberals and the left in general: to people of this bent everything is political, it never stops being political, and their political goals must come before anything else be it the law or the expressed will of the people.

So now it’s been established that the Supreme Court is merely a political debating chamber, Kennedy’s resignation and the looming prospect of a conservative replacement puts things into a whole new perspective. As the BBC says:

Shortly after Mr Kennedy announced his retirement, Supreme Court analyst Jeffrey Toobin tweeted that “abortion will be illegal in 20 states in 18 months” – an indication that he believes Mr Trump’s nominee will join a majority in reversing Roe v Wade, the 1973 decision legalising abortion throughout the US.

Anti-abortion advocates have been trying to scale back the broad constitutional guarantees of the Roe decision in the decades since, and now – without Mr Kennedy on the court – they could be poised for a breakthrough.

The problem the US has with abortion is, unlike in most European countries, they didn’t permit the practice by following the normal legislative process. Instead of a political party running on the platform of allowing abortion and implementing the legislation once in office, they simply got the Supreme Court to declare it a constitutional right – and they did the same thing with gay marriage. They took this route because they knew full well any politician running on a pro-abortion or pro-gay marriage ticket would likely lose, so the ruling classes implemented it via the courts. Only now we’re discovering these so called fundamental, inalienable rights are heavily dependent on how 5 people on the 9-body Supreme Court think, and when the judges change so do the rights. Which proves, if this were in any doubt, that rights do not exist in a vacuum and must ultimately be upheld by individuals who come with their own prejudices and biases.

I doubt Roe v Wade or the gay marriage decision is going to be overturned during a Trump administration, but those in full-blown panic mode have only themselves to blame. If you choose to be ruled by appointed judges instead of elected representatives – which all those who supported these two cases did, at least in part – you can’t complain when new judges come along and make decisions you don’t like. I can see this is going to plague American politics for decades to come, and Presidential elections will become more important for the candidates’ potential Supreme Court nominations than for their actual policies. Indeed, it could be argued many conservatives voted for Trump in 2016 purely to stop Hillary packing the Supreme Court with liberals (aside from Kennedy, Ruth Bader Gingsburg  is 85 years old; if Trump wins a second term, he’ll almost certainly get to nominate another).

What the US needs to do is clamp down hard on activist judges, and refrain from putting people in the highest courts who use their position to achieve defined political outcomes rather than interpret the law. For all Trump’s faults, his nomination of Neil Gorsuch to  the Supreme Court seems to be an inspired one in this regard. The trouble is, as I’ve already said, for the left – and probably a few on the right as well – everything is political, and the courts are simply another weapon to be deployed in the struggle to achieve political goals. I expect much misery will have to be endured before Americans realise the importance of an impartial, non-policised judiciary again.

(If anyone is interested, my thoughts on the Supreme Court’s gay marriage decision as I wrote them at the time are here.)

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19 thoughts on “Changes in the US Supreme Court

  1. “And this is the problem with liberals and the left in general: to people of this bent everything is political, it never stops being political”

    Very true. I’d also add, there is a huge amount of projection in these arguments. The left cannot tolerate a conservative judge because they believe they will use the position to advance the politics of the right, rather than uphold the law as it is written.

    They believe this because that is exactly what they would do with the power.

    I’ve said this about gun ownership too, those most against gun ownership simply cannot conceive of having one and not using against people they don’t like.

  2. “Only now we’re discovering these so called fundamental, inalienable rights are heavily dependent on how 5 people on the 9-body Supreme Court think, and when the judges change so do the rights”

    This makes me wonder. Do those on the left have a very short term view of the world? An emotional reaction to evens right now, demand an immediate response to bandaid it short term, but long term a much greater problem is created. This seems to be a common theme on many issues from poverty to immigration. ‘Children in cages’ seems to fit this mold.

  3. This is probably one of your best and concisely-articulated posts.

    Your point about the unsustainability of leaning on the Supreme Court to implement what should be legislated by elected officials is very well made.

    It also applies to the expansion of the powers of the office of President. To be fair, this probably started at precisely the moment a 2nd country developed the capability to deliver nuclear weapons across continents, ie Congress didn’t have time to vote on whether a war was agreed or not.

  4. “because they knew full well any politician running on a pro-abortion or pro-gay marriage ticket would likely lose”

    Perhaps in the 1970s; but is that still true today? Hillary came very close to winning; only losing because she was a horrible person, not so much on account of her political views. Ireland voted 2:1 in favour of abortion.

  5. Do those on the left have a very short term view of the world?

    I think it’s more the case they believe their views and victories represent the inevitable march of history. Have you noticed how many of them seem to think 3-4 years ago we were all neanderthals eating one another? Speak to them, and they invoke fears of the bad old days which “we’re never going back to”. They can’t fathom politics as an ebb and flow, they see it more like a river pressing on to the sea regardless.

    At some point in future I can see gay marriage being overturned. It won’t happen soon, but I think it’ll be looked at in a few hundred years as a quaint footnote.

  6. Perhaps in the 1970s; but is that still true today?

    In America, yes. Hillary nearly won because abortion is no longer a campaign issue since Roe v Wade settled it (for now). If Roe v Wade was overturned and it was back on the table, the Democrats would have a serious problem on their hands.

  7. This is probably one of your best and concisely-articulated posts.

    Thanks, although I fear the bar is remarkably low.

    It also applies to the expansion of the powers of the office of President.

    Yes, and the increased powers of the federal government at the expense of states rights. It’s all part of the same thing.

  8. Tim Newman

    “I think it’s more the case they believe their views and victories represent the inevitable march of history. Have you noticed how many of them seem to think 3-4 years ago we were all neanderthals eating one another?”

    Yes, there is that too. Obama was against gay marriage, then 28 seconds after he was for it, no one could remember a time when a civilized person would consider it wrong.

  9. It is a good post, Tim, I’m just wondering how you have time to write it. I find that after sleeping off the previous night, paying off the girlies, putting away a full English, then a couple of leisurely coffees it’s time to start preparing for the next round. I feel you’re not fully committed to the “fun”. Come over to Patts and I’ll show you how it’s done. 😉

  10. It is a good post, Tim, I’m just wondering how you have time to write it.

    What makes you think I wasn’t writing it from a bar while getting a neck rub from a ladyboy?

  11. Very good overview.

    Now expect #notmyjudge and hysteria how Supreme Court is controlled by Nazis so they don`t need to follow court orders.

    This is how Fourth Generation war looks like. And is get`s worse.

  12. Back to the left’s obsession with Roe v Wade. It is difficult to see how any litigant can be found with standing to challenge this.
    About the only way I can think of is if some State decides to ignore it, thus giving some person in that state standing to re-litigate.

  13. The nomination process is going to wildly ugly. Prepare yourself. And yes, it is pathetic that 5 people rule this country on so many issues.

  14. I would also argue that if anyone tried to criminalize abortion that they would have tough sledding. For many Americans this issue goes to the core of people’s beliefs, morals, and ideas about liberty. I personally believe the Supreme Court won’t touch it again.

    Gay marriage is a horse of another color. Marriage requires a license in every state of the union, the court essentially overruled any state’s right to administer and license marriages. That will be a problem for the court down the road.

  15. “I would also argue that if anyone tried to criminalize abortion that they would have tough sledding.”

    But that’s beside the point. If the USSC overturned Roe v. Wade, they would simply be saying that there is no right contained within the US Constitution to have an abortion. It’s as if they said there’s no right in the Constitution for everyone to own a BMW M1 – it doesn’t make it illegal, it just says there’s no constitutional right to one.

    If the USSC overturns RvW, abortion remains legal everywhere, unless individual state legislatures make it illegal within their state. Some undoubtedly will. Many won’t. It depends on what the state’s citizenry wants – as it should be.

    I’ve always felt conflicted by RvW. As a lawyer who spent time on constitutional law, I know that RvW was a travesty of legal reasoning. It made up a right out of pure political expediency.

    At the same time, it was a brilliant way to quell what promised to be a fight of epic proportions across the country. Problem is, the Court simply doesn’t have the legal power to impose what they imposed. The legality of abortion is a matter for legislators who are elected by the people, not for judges.

    The ruling regarding the right for state recognition of same-sex marriages, on the other hand, does have support within the Constitution. (Note that I say “state recognition.” Religious recognition remains out of the court’s powers.)

  16. “All three are intellectual lightweights appointed in turn by intellectual lightweights,”

    Good definition of what lefties are.

  17. Pat says
    “Back to the left’s obsession with Roe v Wade. It is difficult to see how any litigant can be found with standing to challenge this.”

    I dunno. What if a guy gets his balls blown off in ‘Stan, then the girlfriend demands a late term abortion on grounds she can’t raise a baby and care for an invalid.

    It could get ugly. A woman’s right to choose versus ONLY a woman’s right.

  18. @zut alors. Laws should not be altered on the basis of extreme “what if” situations. We all know what abortion laws actually entail, and they should be the basis of the laws. Hard cases make bad laws, and all that.

    It’s an ideal case for a referendum, as in Ireland. I assume the “for” camp think they will lose in rather too many states, so prefer judicial decision making.

    The US loves putting “propositions” to voters in most cases, yet won’t touch this one.

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