Saturday, 27 June 2015

Time To Take Stock

As "America has ceased to be a Christian country" for the umpteenth time, W. James Antle III writes: 

If nothing else, the Supreme Court's most recent decisions should shatter whatever remaining illusions of what courts are likely to do for them for the foreseeable future, even when controlled by Republican appointees.

The Supreme Court isn't going to be a major force in restoring limited government or cutting federal authority down to constitutional size.

Yes, you might see some protection of property rights, like Kelo, or spending money on behalf of political speech, such as Citizens United.

The courts aren't totally useless in protecting civil liberties. Some libertarians and conservatives will even cheer the gay marriage decision.

But since FDR's court-packing scheme was even threatened, you'd be hard-pressed to find a major expansion of the welfare state that was blocked on constitutional grounds by the Supreme Court.

Two Obamacare rulings later, the second one rejecting a fairly straightforward reading of the text of law, should remind us that isn't going to change anytime soon even with a Republican majority on the high court.

Social conservatives in particular shouldn't expect much from the Supreme Court.

Every four years, Republican presidential candidates — especially ones who aren't that socially conservative themselves — tell them they should put whatever policy differences they have aside because a Republican president will appoint conservative judges.

That's true, but the impact is much more limited than advertised. Elections matter and so do judges.

If Al Gore and John Kerry had been nominating justices instead of George W. Bush, Hobby Lobby would certainly have gone the wrong way.

Without the justices nominated by Ronald Reagan and George H.W. Bush, both Supreme Court decisions on partial-birth abortion would have been unfavorable to bans, not just one.

But on the biggest questions that have motivated social conservatives, from school prayer to abortion to gay marriage, conservative judges have at best been able to nibble at the edges of liberal precedent.

From Planned Parenthood v. Casey, upholding Roe v. Wade, to Friday's decision discovering a constitutional right to gay marriage, Supreme Courts dominated by Republican appointees have frequently entrenched liberal court decisions.

What major socially liberal decision has ever been overturned, as opposed to merely curtailed somewhat?

In fact, it is worth noting Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens and David Souter, some of the most liberal justices on the Supreme Court, were all nominate by Republican presidents.

Sandra Day O'Connor and Anthony Kennedy have mostly voted with conservative bloc, but have sided with liberals on some big decisions.

John Roberts has been an even more reliable conservative vote, but his main judicial legacy may be twice rescuing Obamacare from itself.

Most of the Republican presidential candidates are arguing that restocking the Supreme Court is the way to fight back against the decisions conservatives dislike.

But this tactic has never worked, even when Republicans have held the White House and Congress, and even when significant effort has been made to avoid liberal "stealth" nominees.

(Has there been a stealth conservative nominee to the Supreme Court since JFK tapped Byron White?)

Clarence Thomas is likely an anomaly. It is doubtful a Republican could today get a justice much more conservative than Kennedy confirmed by a Democratic Senate. And Thomas was confirmed by a narrow margin at great personal cost.

Half the Democrats in the Senate voted against Roberts, including Barack Obama. Only ten mostly conservative Democrats voted for Thomas.

So confirming reliably conservative justices will require a Republican Senate as well as White House, and even that seems to come with a high margin of error.

None of this is to say that I don't think the judicial appointments of a Republican president would be better than Hillary Clinton's.

But if Reagan couldn't restock the Supreme Court, I'm not holding my breath for what lesser Reaganites can accomplish.

It is interesting that Jim mentions Byron White.

Look at the judges who handed down Roe v. Wade. Harry Blackmun, the ruling's author, had been appointed by Nixon. Warren E. Burger by Nixon. William O. Douglas by Roosevelt. William J. Brennan by Eisenhower. Potter Stewart by Eisenhower. Thurgood Marshall by Johnson. And Lewis Powell by Nixon.

Even take out the two Democratic nominees, and that still gives a Republican majority in favour of what was in fact the overturning of the laws of all 50 states. In stark contrast, one of the dissenting judges, Byron White, had been appointed by a Democrat, Kennedy, while the other, William Rehnquist, had been appointed by a Republican, Nixon.

No one found that remotely odd at the time. No one who had bothered to pay attention would find it remotely odd from the perspective of the present day.

Nixon, by Executive Order, first legalised abortion at the federal taxpayer's expense. Whereas it was Carter who signed into law the Hyde Amendment banning it, which, although Henry Hyde himself was a very conservative Republican, had been passed by a Congress both Houses of which had been under Democratic control at the time. That Amendment has never failed to receive its necessary annual renewal by both Houses.

In 1976, Ellen McCormack, a strongly pro-life Democrat, became the first woman Presidential candidate ever to qualify for matching federal funding and for Secret Service protection. If there is not one already, and I should be delighted to hear of it if there were, then someone needs to write a full biography of Ellen McCormack.

(Someone also needs to do a "Whatever happened to each of them and to what each of them stood for?" study of the eight candidates whose names were placed in nomination for Vice President at the 1972 Democratic Convention.)

Both of McGovern's running mates were pro-life. Whereas Nelson Rockefeller legalised abortion in New York. Ronald Reagan, who to this day retains a totally undeserved pro-life reputation, legalised abortion in California.

Reagan, like Bush the Younger after him, proved to be worse than useless when it came to appointing pro-lifers to the Supreme Court, not even trying to do so on two of the three occasions when the opportunity presented itself to him.

Thus, in 1993, when Planned Parenthood sued the staunchly pro-life Democratic Governor of Pennsylvania, whose son is now a staunchly pro-life Democratic Senator for that state and made his case without difficulty from the platform of the 2008 Convention, over that state's very moderate legal restrictions on abortion, Planned Parenthood's case was upheld by a court every member of which had been appointed by a Republican President, including three by Reagan, apart from Byron White, who had dissented in 1973 and who was still dissenting 20 years later.

Eight Republicans out of nine judges. A third of the court appointed by Reagan. And before that court, Planned Parenthood beat Bob Casey, the Democrat who sought to uphold democracy in Pennsylvania. Of course. All round: of course.

I am not saying that the Democratic Party, as such, is pro-life and a great friend of the traditional family. But the Republican Party, as such, sure as hell isn't, either. Especially after recent hours, just wait for who its eventual Presidential nominee actually is, and then for the ones in 2020 and ever thereafter.


  1. US politics is incomprehensible. And people still believe the Civil War was 'about slavery' because it suits modern political agendas. Agrarian bad, industry good.

    1. There is another reason why they believe that.