Less than a handful of years after their hard-won elevation to the Supreme Court, Justices Brett Kavanaugh and Amy Coney Barrett are sending a chill down the spines of conservatives with a string of bad signals from their seats on the court.
In July, Kavanaugh and Barrett joined the court’s leftist majority in declining to hear Arlene’s Flowers v. Washington, a critical religious liberty case. They again sided with the court’s left in a similar decision to turn away a religious exemption challenge to Maine’s vaccine mandate — which Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas took pains to note was staggering in its hypocrisy.
“A State may not assume ‘the best of individuals engaged in their secular lives while assuming ‘the worst’ about the habits of religious persons,” the trio wrote.
Just this week, Barrett and Kavanaugh embraced a theory of judicial supremacy out of step with a more conservative tradition when they both appeared openly skeptical of the construction of the Texas abortion law, which bans the practice after six weeks of pregnancy.
All of this should make the guts of conservatives churn in the leadup to next month’s oral arguments in Dobbs v. Jackson Women’s Health, the biggest abortion case the court has heard in decades. I’ve written about the importance of this case before:
While abortion cases post-Roe have tricked up to the Supreme Court on rare occasions, none have presented the clear and fundamental question that Dobbs now brings: whether or not bans on pre-viability elective abortions violate the Constitution.
In ruling on this case, the Court will have the opportunity to overturn both Roe and Casey, which together form the architecture for a constitutional entilement to abortion.
It is not an understatement to say this is the case pro-life conservatives have been waiting for. It’s why many in our movement willingly shed blood in the vicious fight for the confirmations of Kavanaugh, Barrett, and Gorsuch. The prospect of a majority conservative court was a key reason millions of Republicans turned out to vote for Donald Trump.
So the trepidation conservatives now feel about where Kavanaugh and Barrett may end up on Dobbs is both unexpected and unwelcome. There is a distinct possibility that Barrett, Kavanaugh, and possibly the George W. Bush-appointed Chief Justice John Roberts will find a way to hedge; to “both sides” their way into a narrow and distorted opinion in a case that, as Mississippi’s Attorney General Lynn Fitch has laid out, demands a clear imperative with regard to the dubious constitutional standing of Roe and Casey.
To be clear, with a 6-3 allegedly conservative court, anything less than a decision ringing with clarity on the dismissal of Roe and Casey should be viewed as a failure. Despite the goal-post-shifting going on in establishment Republican legal circles, there is no “long game” here. Although some will argue that any ruling that chips away at Casey is good enough, Roe is the case that created the constitutional entitlement. It is the architecture upon which the legal abortion structure is built. Both Roe and Casey must go.
As Notre Dame law professor Sherif Girgis argued recently, “Upholding the Mississippi law without overruling the court’s previous abortion cases would lack support in any legal source, send even more abortion cases to the court and curb the justices’ ability to overrule Roe down the road.”
We have played the long game for the last 50 years. And we have finally arrived at the decision point, with a case that demands a clear accounting of rulings that Justice Thomas has criticized as “creat[ing] the right to abortion out of whole cloth.” Here to litigate it is a Supreme Court that doesn’t again require “just one more justice,” but is finally positioned to address the question.
If the outcome of Dobbs is indeed a hedge that splits the court’s conservatives — or, to put it more bluntly, if the conservative legal movement has failed to produce Supreme Court justices who are comfortable overturning two outrageously constitutionally defective rulings on abortion — we will be left to justifiably wonder what the whole project has been for.
The Judges Are Our Politicians Now
That we are even in the position to openly speculate where Kavanaugh, Barrett, and Roberts might end up on such a foundational conservative legal question should itself prompt reflection, not only about the expanded role the court now plays in our self-government, but also about how we select our judicial masters.
The court has become an extension of our politics, and that is just as much a choice from Republicans as it has been from Democrats. It wasn’t supposed to be this way. The American founders envisioned a judiciary that was largely subject to a muscular legislature, not the branch that ruled it. But this inversion is what the modern Congress has come to prefer.
The profound questions of our social order — immigration policy, questions of human dignity and the sanctity of life, of marriage, religious liberty, and civil rights — are no longer determined by the legislature, but by unelected and thus unaccountable jurists.
As a case study in congressional preference for judicial decisionmaking, view the collective shrug that resounded from Republicans in Congress when Gorsuch tossed sex and gender identity into the 1965 Civil Rights Act in 2020. Or consider the lack of comprehensive effort among congressional Republicans to challenge President Joe Biden’s sweeping and unprecedented vaccine mandate, now that the Supreme Court has repeatedly sidestepped it.
Also consider the limp non-response from congressional Republicans to the court upholding President Obama’s clear abuse of rulemaking in creating the illegal amnesty program known as the Deferred Action for Childhood Arrivals, or DACA. Add the one pro-life vote Republican majorities allow each year in lieu of an energized campaign to persuade, expose, defund, and actively legislate on one of their key platform issues.
Republicans in the Senate, in particular, will huff about not having 60 votes as a reason none of these policies would be possible. But such a position ignores the actual work of lawmaking: using a majority to vote relentlessly on priority issues, messaging constantly toward a specific policy end, and creating a voting record unfavorable to the opposition.
The last legislative pro-life victory, the ban on partial-birth abortion in 2003, invoked nearly all of these methods. Today, it’s a rarity for the Senate, regardless of party control, to show up for work more than 2.5 days a week.
A New System of Judicial Vetting
In 2018, this largely implicit preference to outsource policy-making to the courts became explicit when then-Senate Majority Leader Mitch McConnell decided to forgo using the Senate GOP majority to try and legislate, but rather to confirm as many judges as possible.
There were pros and cons to this choice, but the clear upshot of asking judges to make every consequential determination about how the country will be ruled is that judges become, effectively, our politicians — unelected politicians with lifetime appointments, but politicians nonetheless. Yet on the right, we do not vet them as such. Not even close.
I’ve addressed the contradictory and self-defeating aspects of this position before:
…expecting judges to rule on matters of policy and politics while simultaneously refusing to vet them for their beliefs in those matters is both contradictory and unsustainable. A party cannot on one hand expect judges to issue the correct policy decrees while on the other hand studiously fail to take any steps to guarantee that outcome.
While the left has not been shy about their practice of nominating stone-cold activists, the right has always held to the norm that judges should be interpreters of the text in front of them rather than ideologues who use the bench to invent new values-driven legal theories that impose their own views on the country.
This is, of course, the prudent and correct standard of judging and of judicial interpretation, writ large. But it fails to account for the intentional shift of expectations that have taken place from the “judge-as-textualist-interpreter” to our current conception of the “judge-as-legislator.” In many ways, the right’s ideological position of applying the normative standard of restrained judicial vetting seems out of step with the current post-normative reality of how the country is actually ruled.
The left accounted for this shift long ago, and it is why they never suffer a surprise decision from their nominees. They already know exactly where their judges stand on every issue, minuscule to monumental. But since the right is now a regular and active participant in placing the burden of self-government onto the judiciary, it would seem as though we should do more to ensure that the people we place in those positions will actually uphold our interests.
For starters, this should mean that the imprimatur of the Federalist Society requires more questions, not less. We should applaud, not condemn, Republican senators who do their jobs and vigorously question the nominees of both the right and the left, and who hold exacting standards for nominees on constitutional questions. Also, the conservative movement as a whole, not just a select few, should be welcome to offer input into the selection process for nominations to key judicial positions.
If Congress is going to continue passing off the questions of self-government to the court — that is, if they are going to force judges into making choices that are inherently political — then perhaps the cleanest response is to simply put the politicians on the court.
Among Republicans in the Senate, there are three former Supreme Court clerks: Sens. Mike Lee, Ted Cruz, and Josh Hawley. If another vacancy presents itself under a Republican administration, perhaps it’s time we skip the backroom Federalist Society coronation of some pre-selected circuit court judge and simply elevate a senator to the Supreme Court.
At least senators have a record of votes we can examine. Unlike Kavanaugh, Barrett, and even Gorsuch on transgender issues, there will be mercifully few surprises about where they actually stand. The conservative movement cannot afford bitter surprises, at least not when the Supreme Court has taken for itself, with the willing encouragement of the legislature, a dual role of interpreting the law as well as making it.
Source: The Federalist
