It has long been an article of faith on the Right, including for me, that the Left has undemocratically imposed its views on the country for decades by using the Supreme Court as a super-legislature. I had a discussion with a friend of mine this past weekend, an actual centrist (bizarre, I know), who suggested this view is wrong, or rather exaggerated. He challenged me to demonstrate my position, stipulating that it is obviously true with respect to abortion. For the most part, I failed his challenge, but today we will explore to what degree and why it matters.
This is a question of bubbles. People on the Right have long noticed that the modern American Left lives in a bubble. Even people on the Left, some of them, have started to realize the truth of this observation. I have written on Left bubbles elsewhere, so I will not repeat myself. Instead, I want to talk about conservative bubbles, with a focus on this question of the Supreme Court.
As far as such bubbles generally, one can imagine a person who gets all his news from conservative media, reading only Breitbart and a carefully edited Facebook feed. Certainly such people exist, probably a lot of them. They live in a type of bubble, but their bubbles aren’t the same as their liberal counterparts’. First, they’re not airtight, since any other interaction with the media/entertainment complex, from CNN on the television in the car dealership to the apps curated on the Apple Store, will expose them to an aggressively pushed Left agenda, as will their workplace if they work for any sizeable company, and the schools of their children in most of the country. And if they went to college, they will have been barraged for years with intense liberal propaganda. Liberals, in contrast, can, and do, live in truly airtight bubbles, from cradle to grave. Second, and more importantly, those who live in conservative bubbles have no power at all. They are deplorables. Their only power is to vote. Liberal bubbles contain the vast majority of the most powerful people in the country today: the media/entertainment complex; all big corporations; the academic world; the bureaucrats of the administrative state; most big state and local governments. While a few conservatives exist in those places, they have very little power, and they most definitely don’t live in a conservative bubble. That is, liberal bubbles contain relevant people for America as a whole; conservative bubbles don’t. It’s the difference between Oprah and a guy who lives in a mobile home in West Virginia. One of those people matters to where America goes.
So the majority of conservatives cannot have all-encompassing “life bubbles,” and none do who matter to national life as a whole. But can they have smaller, more narrowly focused “thought bubbles”? A thought bubble is a type of ideology—as James Burnham defined it, “a more or less systematic and self-contained set of ideas supposedly dealing with the nature of reality . . . and calling for a commitment independent of specific experience or events.” Examined dispassionately, I think the conservative belief in the Supreme Court being the major active agent in imposing leftist views, and thus giving us the defective America we have today, is a type of thought bubble.
Naturally, my friend’s stipulation with respect to abortion narrows the field of discussion. Nor should abortion be treated as unimportant: that the Supreme Court by fiat for decades has imposed on America the most radical pro-abortion regime in the Western world, resulting in the deaths of tens of millions, is a moral evil matching or exceeding any of the worst crimes of the twentieth century. But still, let’s set that to the side.
We can also stipulate that the Supreme Court has not generally engaged in significant leftist fiat rule with respect to economic matters or military matters. Thus, what the Right complains of, regardless of its veracity, is confined primarily to what may be called social matters, which already suggests the Court’s fiat rule is exaggerated, for social matters are not all of life, as important as they are to a society. And nobody would deny, I think, that what the modern Left desires most of all with respect to social matters is emancipation—the release of all people from unchosen bonds, pure voluntarism, the creation of atomized individualism where there is no mediation between the citizen and the State, and the forcible suppression of any opposed to this program. Let’s take a tour through the past hundred years to see how, if at all, this explains the Supreme Court’s rulings.
We can all agree, I think, that any leftist headway in ruling through the Court began in the Progressive Era. Prior to their time the Court had extremely limited impact on America, relative to today, and was in no way a reliable advocate of any particular political program. The goal of the Progressives was to remake society in a collectivist, technocratic mold and they saw the Constitution as it had always been interpreted, and the Court, in the limited role it had always occupied, as barriers to accomplishing what was needed. Woodrow Wilson, for example, was very explicit that the Constitution that had worked for the past could not work for the future, and could not be allowed to hobble the future.
The Progressive program was of a social nature, but as befitted the time, mostly focused on economic and administrative goals, including the creation of today’s monstrous administrative state, which rules us all through unaccountable, and uniformly leftist-dominated, bureaucrats. For some time, though, the Progressives were blocked by the Court, which repeatedly ruled that Progressive plans violated the Constitution, which they clearly did, on its plain text. As the Left does still today, the Progressives took advantage of emergencies, in this case first World War I, then the Depression, to advance their own power. It was only during the Depression, though, that Progressives really started to get the Court to begin to approve its radical social agenda. To accomplish their goals, the Constitution had to be creatively reinterpreted, or more accurately, reimagined. The Progressives’ success in this endeavor set the template for all future Supreme Court legislation—merely redefine the Constitution to accomplish a goal that cannot be achieved otherwise, a technique indistinguishable from legislating.
Wickard v. Filburn, decided in 1942, is a culminating example of this process. In that case, a farmer, Roscoe Filburn, was fined by the federal government for growing wheat solely for his own animals’ consumption on his own farm. Congress had purported to set limits on all wheat production. Such limits were regarded as ludicrous under any plain reading, and all previous interpretations of the Constitution, the text of which forbids Congress from doing anything in this regard other than to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Filburn was not engaged in commerce, much less interstate commerce. Nonetheless, the Court upheld this law as a legitimate exercise of the federal government’s power, by claiming, in effect, that any action indirectly affecting any commerce, such as by Filburn not buying grain because he grew his own, was interstate commerce.
Many other decisions came before and after, in which the Supreme Court similarly reinterpreted the Constitution to allow the Progressive program to go into effect. So yes, the victory of, and transformation of America by, the Progressives was certainly made possible by the Court abdicating its role of interpreting the Constitution (we can leave aside whether Marbury v. Madison should even be good law, that is, whether it makes sense for the Supreme Court to be the only branch of government performing constitutional interpretation). But this is not the same thing as the Court being used to impose the Left vision in opposition to the will of the majority, which was the original claim of the Right we are discussing. The Left vision won enough seats in Congress to pass these laws; the Court merely stopped standing in the way. (It was not only in social matters that the Court did not stand in the way; it also, for example, endorsed Democratic internment of Japanese-Americans in Korematsu.) Thus, while conservatives tend to see the Progressive Era, and the New Deal, as the origin of rule by the Supreme Court, which is true enough, and it is also true that all this shows the erosion of the rule of law, conceptually this is not fiat rule by the Court, which is what conservatives complain of today.
Moving forward fifteen years, and inconveniently for conservatives today, the Court began imposing racial desegregation in schools a decade before broader legislative desegregation and anti-discrimination laws were passed by Congress. The Right does not like to talk about this, because arguing against, say, Brown v. Board of Education is not palatable, even if one thinks it is a good example of the Supreme Court ruling the country. But given that racial segregation on its face violates the letter and intent of the Equal Protection Clause, an actual textual provision of the Constitution, Brown v. Board is not at all an example of fiat rule by the Court, but a mainstream exercise of the Court’s power of constitutional interpretation.
The Left likes to make the Right talk about Brown because they think it impales the Right on the horns of a dilemma—either support racial segregation, or accept fiat rule by the Court as a good thing. As I say, this is a false dilemma. It is still true, though, as I have noted elsewhere, the Right prefers to gloss over that, not so long ago, prominent conservatives such as William F. Buckley favored allowing segregation and opposed the Supreme Court being used to override legislative imposition of segregation. Of course, though, so did most of the Democratic Party, who, as Richard Rothstein has written, was the party mostly responsible for the discrimination against African Americans in housing that still has significant negative impacts today. All of America was guilty of ill treatment of African Americans for a very long time; that proves nothing either way about Left or Right, then or now.
So until the late 1960s, while certainly the Left gained some victories ratified by the Court, it is not really true that the Left ruled through the Court. This changed, though, as the Court began to implement leftist social doctrines across the board during that decade, against the legislative will and without any basis in the Constitution whatsoever for its decisions. Some of this was in technical areas of great ultimate impact, such as Baker v. Carr (1962), where the Court grabbed for itself new power to rule on voting districts. Others were of more popular relevance, such as Griswold v. Connecticut (1965), which invented the right to sexual privacy out of whole cloth, effectively forbidding morals legislation. The most famous decision from this period, of course, was Roe v. Wade (1973). Given the massive downstream impacts of these cases, there is certainly some truth to the Right’s complaint, and to my original claim to my friend.
But what makes the Right’s use of these decisions, to support the claim we are analyzing, an example of a bubble is that the Right has actually accepted most of them. In practice, conservative objections to these decisions (other than Roe) have largely disappeared (not from me, though). To take another example, not that long ago, the Court’s obsessive granting of special, new rights to criminals, along with imposing legislative-type remedies for supposed constitutional violations (e.g., Miranda rights), was a major issue on the Right. Between the massive drop in major crimes (at least outside Left-controlled urban centers), the Right realizing more and more that government is the enemy, and simply getting used to a new order, objecting to most of these decisions has disappeared from the Right radar screen, although objectively it is just as much an imposition of left-wing will as ever. If you accept something, though, you can’t really complain about it, and complaining while accepting is a type of thought bubble.
In the 1980s and 1990s, as the Court became moderate, most major shifts toward the Left stopped. In fact, some decisions on social matters went conservatives’ way, such as Heller, where the Supreme Court recognized that the Second Amendment should be read as its text states, rather than in the creative way beloved of the Left. Yet, to the point of this analysis, the Right still felt persecuted by the Court. Part of that was abortion, of course. But I think a larger part of it was the ever-dashed hope that the Court would actually become conservative and start to roll back loathed Left decisions, though as I say, if you parse reality, by the 2000s, there were very few of those that the Right really wanted to reverse, so this desire had largely become an abstraction and a tool for political boosterism, like a preacher who does not really believe in God still giving fire-and-brimstone sermons to his congregation.
Looking at it objectively, talking to my friend, the only other good example of fiat rule on social matters I could come up with was the creation of new rights for homosexuals, from Lawrence (2002) to Obergefell (2015). My friend admitted that, but pointed out that some of the country had already been heading in that direction, and in any case, this was a different moral quantum than abortion, and one that directly affected far fewer people. Both of those are true. And at the same time, the Court has repeatedly in recent years rejected attempts by the Left to gut the religious freedom provisions of the First Amendment, as in Hobby Lobby (2014) and Masterpiece Cakeshop (2018) (though both were very narrowly tailored, not ringing defenses of religious freedom, as might be desired). Moreover, it is not the case that every Court decision that did not go conservatives’ way is an example of leftist rule through the courts. For example, that Obamacare was upheld on highly suspect grounds, rewriting the law to treat it as a tax and therefore a legitimate exercise of Congressional power, is not an example of fiat rule on social matters; it may be objectionable, but is not a raw exercise of power by the Court through Constitutional redefinition in the same way as these other cases mentioned above.
Another way of looking at this is to imagine what would happen if the Supreme Court no longer ruled on social issues at all, and all these decisions were vaporized. The Right should be honest enough to admit that most of these social issues would still go largely the Left’s way. Abortion would remain legal in much of the country, and in any case, chemical abortions would occur where abortion was made illegal. The Left would still have an iron grip on the universities and the media-entertainment complex. Atomized autonomy, the worship of emancipation against imagined oppressions, would still dominate the thinking of the Left, and their legislative program, which has great appeal. That is, at this point, conservatives would not win much, if anything, by having the Court not rule by fiat. You can argue that part of this is that the Court’s fiat rule has changed America, and maybe so, but I don’t have a solution for that, and it’s spilled milk now.
Now, you can certainly come up with a counter-factual to support my original claim of leftist fiat rule through the Supreme Court, but that’s cheating. So, you could say that if Hillary Clinton had won, and had appointed more leftists on the Supreme Court to join the four already there (Breyer, Sotomayor, Ginsburg, Kagan—nobody ever bothers to ask how they’ll vote on any of social issues, of course, because their decisions never have anything to do with the Constitution or the law, only achieving Left goals), you can spin a horror show where the religious liberties of Christians are wholly destroyed, the Second Amendment made a dead letter, an exception for “hate speech” (i.e., speech opposed to leftism) made for the First Amendment’s speech provisions, and so on. True enough—but the original claim is that the Court rules the country on behalf of the Left now. And so, being honest, and (unlike liberals), seeing reality clearly, I have to admit that claim is weaker than I have thought.
So, mea culpa. Or is that right? If it is true that conservatives are wrong about the impact of the Court’s fiat rule, why the rage, hatred, and desperation the Left has showed about the composition of the Court, ever since the Bork nomination, in 1987? If controlling the Court is not important to imposing their agenda, why does the Left act like it is? Beats me. Maybe it’s just their love for abortion. Or maybe it is like Lucy and the football—they see their Utopia arriving, just over the horizon, if they can just get a few more Left justices (as with my counter-factual above), delivered on a platter by their Supreme Court, and the elevation of any non-Left justices, even moderates, dash their hopes so they shriek with rage. It doesn’t really matter for this analysis.
I conclude, as a political matter, that I was mostly wrong. I also conclude that the proper approach is to act as if I was right, since we can be sure that if the Left gets full control of the Court, looking back from twenty years from now, I will have been right, just early, or what I will then call visionary. It is unfortunately necessary to control the Court, and, with luck, or grace, that conservative Court aborning will roll back a hundred years of Left decisions, and impose ones twice as radical in the opposite direction, since what is sauce for the goose is sauce for the gander. We can only hope.
In the history of political forecasting, let alone prophecy, few analysts rival “Brutus”for both his accuracy and rhetorical skill. His warning was ignored in 1788. Americans paid a heavy price after 1857: Dred Scott. They have continued to pay ever since 1868: the Fourteenth Amendment.
The remarkable fact is that this development was foreseen clearly by “Brutus.” Analyzing the Preamble, he recognized that the centralization of political power was inevitable:
To discover the spirit of the constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the preamble, in the following words, viz. “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution,” &c.
If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government. The preservation of internal peace–the due administration of justice–and to provide for the defence of the community, seems to include all the objects of government; but if they do not, they are certainly comprehended in the words, “to provide for the general welfare.” If it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States, as one great body politic, no doubt can remain, but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal. The courts, therefore, will establish this as a principle in expounding the constitution, and will give every part of it such an explanation, as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.
Such a rule of exposition is not only consistent with the general spirit of the preamble, but it will stand confirmed by considering more minutely the different clauses of it.
The means of this centralization, he predicted, would be the Supreme Court’s power of judicial review.
Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion.
Marx wrote that whenever capitalists accept the right of propertyless men to vote, private property is in theory abolished.
The political elevation of man above religion shares all the defects and all the advantages of political elevation in general. The state as a state annuls, for instance, private property, man declares by political means that private property is abolished as soon as the property qualification for the right to elect or be elected is abolished, as has occurred in many states of North America.
Is not private property abolished in idea if the non-property owner has become the legislator for the property owner? The property qualification for the suffrage is the last political form of giving recognition to private property.
Three quick points:
I think the cases that have narrowly gone the way of conservatives imply that if conservatives do not retain at least a 5-4 majority, it is virtually certain that various outrages will be visited upon us.
Complaining that the left has ruled their opinion by fiat, in my experience, has almost always been about Roe v Wade or Obergefell. Maybe the phrasing should change to “Sometimes the liberals have used the court to accomplish what they could not do through the legislature”.But, when you look more broadly at “the courts”, you can clearly see a tendency to block Donald Trump by Federal judges making ludicrous rulings, only a few of which have been able to make it to the Supreme Court, where they have been overturned.
Third, perhaps the secret urge behind conservatives fixation on the courts is not so much about bad behavior from the other side, but about the recognition that much of the real power of the state is at least potentially in the courts, so if conservative want real power they have to gain and retain dominance in the court system.
Yes, I think my article generally agrees with that, especially the second point, at least as confined to present-day matters. The illicit blocking of the Right by rogue judges, particularly through misuse of nationwide injunctions, is a cancer that has grown under Trump, as the Left becomes more desperate.
Getting dominance of the court system isn’t going to work. I’ve been hearing that for thirty years, and it’s been of no benefit to conservatives, though as I say the courts have not been the source, per se, of many of the victories of the Left. But controlling some percentage of the courts hasn’t helped the Right gain any victories, or roll back any victories of the Left. That’s because the Right has always refused to do what is necessary, and “impose [decisions] twice as radical in the opposite direction.” Until that happens, “controlling” the courts, even if that were true, is a waste of time. One who has power and refuses to use it in the way one’s enemies do is a fool. Related is your first point, about the outrages certain to be visited, which is no doubt true.
More likely, a man yet to be named will force a showdown with the courts, forcing them back into their proper role, either by the Jacksonian precedent of simply ignoring them, or by more direct means. Alternatively, it says in black-and-white in the Constitution that Congress can simply decide certain matters, whatever Congress wants, are not within the competency of the courts (appellate jurisdiction) to decide (Article III, Section 2), so a competent Congress could try that route. Of course, the Courts would re-interpret the Constitution to forbid this action, no doubt leading also a crisis, but at least that way maybe we could not start with the guns.
I actually think Jackson arguably had the right of that particular approach. It’s seen now as a sort of dictatorial move, which you and I would probably not have a huge problem with, but it’s not at all obvious from the language of the Constitution that the Supreme Court is in any way superior to the Executive branch. It seems perhaps that the right is really just to render an opinion, but that the Executive has just as much a right to overrule the courts’ opinions as they do to render an opinion that the Executive is acting out of line. In that case, I think it is up to the electoral college to vote him out, or the Congress to impeach.
No doubt. It’s clear now that Marbury v. Madison was a fatal error in the American system. Not the only one, but if it had been the only one, it would still have been fatal, because once any group descends to using the judiciary to control the country, there is no way around it, or back. Except, as I say, through forced showdown and the ending of the Marbury regime.