Oh how quickly we forget history. It's amazing isn't it? We can almost completely ignore things that have happened in the past because, well, they're in the past. Yet it is often the past that sets us up for where we are today, and today's Supreme Court battle is no different.
To understand the origins of today's battle, one must go back in time somewhere around 60 years ago. Yep, to the 1960s. That is when a movement started to bring about "sexual freedom" and "revolution" in our country. It's hard to pinpoint its exact origin, but its not hard to argue that San Francisco, California, became the de facto headquarters of this movement and its participants.
Yet, as Saul Alinsky, Norm Chomsky, and their progressive cohorts would learn, most Americans didn't, and still don't, approve of their radical progressivism (both fiscal and social). This led to a number of defeats at the ballot box and an inability of the progressive left to advance their agenda. In frustration, and perhaps desperation, they decided on two new tactics, both of which would be successful and have devastating consequences for our nation.
The first was a planned liberal takeover of the educational system in our country. As the right was building businesses and capitol, in essence playing tic-tac-toe, the left was playing 3-D chess (politically speaking). You can read more about that in a previous article I wrote about it.
The second was a coordinated take over of the court system to bring activism to the bench in order to advance in court that which they could not win in an election. They wrote articles on things like "the living constitution," "judicial interpretation," and how "outmoded and outdated" the Constitution was. This worked most spectacularly within the 9th Circuit Court of Appeals, and to this day, there is no court either so liberal, or so overturned, as that court.
There are a litany of cases we could point to whose outcome was activist in nature and not originalist, but suffice it to say that a VERY short list would include:
- Roe v. Wade – 1973 Supreme Court ruling creating the constitutional right to an abortion.
- Kelo v. City of New London - 2005 the court allowed the city to exercise its eminent domain power to transfer property from homeowners to a private developer.
- Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech.
- United States v. Blewett - August 2010 the Supreme Court ruled that the Fair Sentencing Act applied to any sentences imposed after it was passed in August 2010, even if the charges were made before that date.
- Hollingsworth v. Perry – 2010 decision by Vaughn R. Walker for the United States District Court for the Northern District of California overturning California's constitutional amendment to ban same-sex marriage.
- Obergefell v. Hodges – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment.
So, the left was winning the culture war without winning at the ballot box, and they were doing it in the courts at both the state and federal level. Since Judicial precedent is set against hearing cases without an implicit reason why they should, once these cases were decided they became precedent and blocked attempts to re-litigate them.
The chilling effect of this, however, is that two can play at that game, and that is what you began to see. By the time Ronald Reagan's second term began, the right had caught on to their game and had began playing along almost out of self preservation. And so, the battle for the court system in America had begun. The winner would be whomever could appoint the most judges who agreed with their viewpoint in order to prevent the other side from imposing their views by judicial fiat (and thereby avoid the gridlock designed to maintain neutrality).
Were we living in the 1950s, Judge Amy Coney Barrett's nomination would not have really mattered. For the most part, the court only decided if laws passed were constitutional according to the written Constitution. They didn't create new meanings and rights, the legislature did, and then the courts would decide ONLY if those laws were permissible by the constitution of if they required an amendment. When that changed, and the courts became a way AROUND the legislative process and Constitution, well, it doesn't take a rocket scientist to figure out that both sides were going to attempt to use it to their advantage.
And so we arrive at today. Due to circumstances that neither side could control, two Supreme Court seats will be filled by Donald Trump that will shift the power of the court AGAINST activism and back to originalism. I say two because there was a political move to create the first of the three, so it doesn't count under circumstances that neither side could control. Yet EVEN THAT is an indictment of how out of control the courts are in the legislative process. If the court's only role is to read and directly apply the Constitution, then their political affiliation shouldn't and wouldn't matter at all.
So then why does it? AH HA!! Now we've arrived at the heart of the issue, and the million dollar question.
Why? Because all of the "social progress" made through judicial fiat, instead of the legal and proper legislative process, is now vulnerable BECAUSE it is a fiat and not a law, or better yet, an amendment, as we wrote here. So now we're in a fight, that shouldn't be a fight, because the left rammed their progressive agenda down America's throat, and they're worried that it might all get undone. Well, yeah, they should be worried, because that's exactly what the right is trying to do. Why would that surprise anyone?
So now the Democrats are trying one last hail mary, and that is to filibuster by absence. That's right, you read that right, the party who ENDED THE FILIBUSTER to push through Obama's judicial appointments is now using a parliamentary trick as a de facto filibuster to attempt to prevent their agenda from being overturned by blocking a Trump judicial appointee. The hypocrisy is so thick you could cut it with a knife.
What scares the left the most, however, is that they know that they still cannot get their agenda passed through the legislative process, and now they're facing the specter of not being able to use the court system to force their views by fiat. In other words, they would now have to win the legislative process and accept the gridlock that was intended to prevent one side from dominating the other, and they're losing their minds over it.
They are so used to just doing whatever they want, and having the courts impose it by fiat or "interpret" it into the Constitution (despite the fact that it isn't there), that the thought of not being able to push and mold society into their Liberal Utopia scares them witless. But it shouldn't, not if their intent ISN'T to force their views on others as they accuse Conservatives of doing.
For too long they've leveled that accusation while being guilty of the very thing themselves. Now the shoe is on the other foot, and they're not happy. Gee, it must be tough, but we could have told you that, oh wait, we did, you didn't listen. Guess it stinks to reap what you've sown.