Why the Supreme Court is now America’s most dangerous branch
By Mary Kay Linge
September 29, 2018 | 11:44am
As members of Congress have shied away from passing unpopular laws, the Supreme Court has rushed to fill the void. AP
With its dramatic reveals, shocking allegations and stunning confessions, the fight over the confirmation of Supreme Court nominee Brett Kavanaugh has had more plot twists than a telenovela.
And the Court has only itself to blame.
“The Court’s adventurism and self-aggrandizement has had insidious consequences,” said David A. Kaplan, author of “The Most Dangerous Branch” (Crown), out now.
This month’s bare-knuckle brawl in the Senate is all the proof we need that judicial activism has grotesquely warped American politics, Kaplan argues.
“By inserting themselves into our most controversial political issues, the justices raised the stakes and led us into to these confirmation battles,” he told The Post. “They didn’t intend that, but you can draw a straight line.”
If the Senate’s Republican majority holds together and seats Kavanaugh for the Court term that begins this week, the effects could be profound.
But in recent decades, dysfunctional legislators have prioritized incumbency and shied away from contentious debates. Their refusal to write laws that would force them to choose sides has conferred power on the judicial branch — and judges have leapt into the vacuum to make the rules themselves.
“I’ve talked to senators and congressmen who say, ‘Why should we get involved in tough political issues like immigration? Across the street at the Court, they’ll resolve it for us,’ ” Kaplan said. Supreme Court justices, who serve for life, never have to worry about re-election.
“Given the potential political costs, members of Congress are thrilled to stay out of the sewer,” he said.
Brett Kavanaugh’s confirmation fight has taken polarization to new levels.
AFP/Getty Images
Legal scholars find the seeds of today’s hyperpolitical Court in the infamous Dred Scott decision of 1857, which overturned Congress’s ban on slavery outside the South. To justify that momentous ruling — which soon helped spark the Civil War — the justices invented the concept of “substantive due process” as a way of granting new rights not specifically included in the Constitution.
The idea lay dormant until 1905, when a pro-business Supreme Court majority resurrected substantive due process to strike down a state law that set maximum hours for factory workers. That case, Lochner v. New York, was cited repeatedly over the next 30 years to cancel scores of progressive labor laws. Thanks to substantive due process, “the justices could overturn legislation in favor of their own values,” Kaplan concludes.
President Franklin D. Roosevelt’s four terms in office gave him enough time to remake the Court in his own progressive image, bringing the Lochner era to a close. Soon enough, liberal justices adopted substantive due process to achieve their own ends — first in decisions that legalized contraception in the 1960s, and then in the cataclysmic Roe v. Wade in 1973.
In Roe, a 7-2 Supreme Court majority declared a brand-new constitutional right to legal abortion, which — surprise! — they decided had been lurking in the shadowy “penumbra” surrounding the 14th Amendment ever since its passage in 1868.
One clause within that amendment — “nor shall any state deprive any person of life, liberty, or property, without due process of law” — was enough to conjure up an expansive new “right of privacy” that included a woman’s right to end a pregnancy for any reason she chose.
“Liberals rejoiced in Roe for a generation,” Kaplan writes, and “romanticized a Court that did social justice.”
But conservatives seethed. Roe horrified those who argued that a pregnancy involves two people — and that the ruling violated the fundamental rights of one of them.
By overturning the laws of 46 states at one stroke, Roe short-circuited the delicate democratic balance the Founders had constructed. It wrested the divisive issue away from state legislatures, where competing values can be debated and varying solutions tried. At the time, several states had independently legalized abortion; others were hashing out compromise measures.
“Too far, too fast,” Associate Justice Ruth Bader Ginsburg, leader of the Court’s left wing, has lamented on multiple occasions over Roe. Ginsburg, a highly successful women’s-rights crusader when Roe was decided, strongly favored abortion legalization. However, she argued, its sudden imposition on Americans with deep moral qualms had the Court “biting off more than it could chew.”
Indeed, Roe spawned a decades-long backlash that fueled Ronald Reagan’s 1980 landslide, nurtured two generations of right-wing legal activists and pushed Donald Trump into the White House — in large part because of his promise to give the American judiciary a conservative makeover.
“A significant percentage of Trump voters chose him solely because of the Supreme Court,” Kaplan said. “They decided that, whatever else he might do, at least he would put justices on the Supreme Court who’ll be there for a generation.”
In the wake of Roe, the justices have seemed increasingly willing to cast aside traditional bonds of judicial restraint. In all too many cases over the last 45 years, Kaplan argues, they have seized the chance to make laws from the bench according to their own policy preferences.
The prime offender has been Associate Justice Anthony Kennedy, whose retirement in June opened the seat that Kavanaugh hopes to occupy.
Kennedy, appointed by Reagan in 1988, has been the Court’s swing vote in closely divided cases ever since — sometimes siding with its four consistently liberal justices, sometimes with its four solid conservatives.
“As the swing justice,” Kaplan writes, “Kennedy effectively was the Court.” And he had no qualms about using tortured legal logic to justify the results he wanted to achieve. In the majority decision for 1992’s Planned Parenthood v. Casey, which reaffirmed abortion’s constitutionality, Kennedy explained his thinking in extravagant prose: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
He even quoted himself a decade later in his majority opinion in Lawrence v. Texas, which struck down state anti-sodomy laws. The caustic conservative Justice Antonin Scalia, in dissent, mocked Kennedy’s grandiose notion as the “famed sweet-mystery-of-life passage” that “ate the rule of law.”
Lawrence, in turn, led directly to Kennedy’s deciding vote in 2015’s Obergefell v. Hodges, which legalized gay marriage in all 50 states.
He sided with the liberals in those landmark cases, but Kennedy was equally willing to dabble in lawmaking with the Court’s right wing. He joined with conservatives in the Heller case in 2008 to overturn a local law restricting handgun ownership and to rewrite campaign-finance regulations in 2010’s Citizens United.
In 2000, Kennedy was the deciding vote in Bush v. Gore, which handed the White House to the GOP’s George W. Bush — for Kaplan, the Court’s most extreme overreach of all.
“The Court thought, ‘The country is in chaos, who but us can save it?’ ” he said. “They felt they had to save us from ourselves, but a disputed presidential election is something the Constitution directly contemplates. What they saw as chaos was in fact democracy in full bloom.”
Hence the hysteria over Kavanaugh on both sides of the aisle. Installing an unflinching conservative in place of the fickle Kennedy would cement the five-vote Supreme Court majority that Republicans have coveted for 45 years — and that Democrats are desperate to block.
“As William Brennan, the liberal lion of the Court for 30 years, used to say, ‘With five votes you can do anything,’ ” Kaplan said. “Well, the conservatives are about to take that car out for a spin.”
If the Senate majority gets its way and seats Kavanaugh for the Court term that begins this week, the effects could be profound.
“Many conservatives argue the Court should be aggressive in protecting what they cast as ‘rightful liberties,’ even where that means not honoring decisions reached by the democratically elected branches,” Kaplan said.
“Going forward, you’ll see many conservatives arguing that all kinds of legislation — on workplace safety, environmental protection, minimum wage, climate — passed by Congress and in the states is illegitimate and should be thrown out on constitutional grounds,” he predicted.
“They’ll say that these originate from economic rights inherent in the Constitution,” Kaplan said, abandoning the right-to-privacy arguments that progressives used to fuel their judicial adventures.
The results will please conservative voters. But they’ll also continue to impose undemocratic decisions on the American people, thereby eroding our trust in the judiciary, diluting the power of elected representatives — and, in time, perhaps sparking a left-wing backlash in turn.
“The justices do because the justices can,” Kaplan said. “But we too readily look to the courts to solve our problems. We ought to have more faith in our democracy.”
P.S.
Besides the public political inclination of the SCOTUS Justices, I find their religious affiliation more troubling since as of today 9/29/2018, it consists of 4 Roman Catholics, 1 Episcopal, and 3 Jews; when this Constitutional Republic was founded by Protestants and until recently still was Protestant.
There are no Protestants on the U.S. Supreme Court!
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