Supreme Court Justice Anthony Kennedy

With the retirement of Supreme court Justice Anthony Kennedy, the Left in this country has been very downcast, and understandably so. But today I want to talk about 2 reasons why this should never have been the case. There really shouldn’t be any reason to fear the retirement of a Justice of a different political persuasion if the checks and balances in this country’s government are allowed to work properly.

They haven’t been allowed to for decades, especially with regards to the Supreme Court. I’m going to highlight 2 of these, but both can be summed up in this one statement; the power you grab will be used against you.

Mentioned links:

Senate Democrats invoke the nuclear option in 2013

Roe v. Wade [Conservapedia]

Roe v. Wade [Wikipedia]

Obergefell v. Hodges [Wikipedia]

Dale Franks full tweet

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Show transcript

With the retirement of Supreme court Justice Anthony Kennedy, the Left in this country has been very downcast, and understandably so. But today I want to talk about 2 reasons why this should never have been the case. There really shouldn’t be any reason to fear the retirement of a Justice of a different political persuasion if the checks and balances in this country’s government are allowed to work properly.

They haven’t been allowed to for decades, especially with regards to the Supreme Court. I’m going to highlight 2 of these, but both can be summed up in this one statement; the power you grab will be used against you.

The first issue is that of the so-called “Nuclear Option”. Senator Harry Reid proclaimed that the Senate was broken because the confirmation of judges required 60 votes. He claimed that the Senate would become obsolete if that rule was kept in place. Barack Obama said that the rule was causing obstruction, it wasn’t normal, and it was certainly not what our Founding Fathers intended. What’s interesting is that this rule used to be 67 votes, but that was changed in the 1970s. But by 2013 even that was heresy.

What the “Nuclear Option” did was change the rule to requiring only 51 senators to confirm a judge; what they called the “Constitutional Option”, as if the Constitution makes us a direct democracy rather than the actual representative republic that we are. Misunderstanding that led Democrats to then strip away the rights of the minority party, and not require the majority to even have to work with them in this area. That’s a poor way to keep national cohesiveness, even on issues where we might disagree. Two wolves and a sheep voting on what’s for dinner is the often used analogy, and that allows the aggressor wolves to take advantage of their position…right up until the sheep are the majority, and then there is the sense of revenge that comes into play. Fostering that destroys good governing.

Further, a bare majority rule allows both sides to bring in the more extreme elements into the judiciary. You don’t want a Clarence Thomas, I don’t want a Ruth Bader Ginsburg. But if either side just needs 51 out of 100 votes, it’s easier to push through anyone the majority wants without having to make concessions to the minority.

And so the power you grab will be used against you. Now Democrats, who paid lip service to the understanding that they would someday have to pay the piper, are now finding the bill to be more than they were expecting. They are the spoiled children of governing; caring only for short-term gain and not thinking of the future. Why should Harry Reid care anymore? He’s not in the Senate. Now it’s Chuck Schumer’s problem to clean up. Good luck, Chuck! Now you tell me, was Harry right? Trump’s nominee will only need 51 votes to get confirmed; is that better in your eyes than the “broken” system that your party chucked? Far from being obsolete, the Senate’s 60-vote rule made it more consequential than it is now. Now it’s just a rubber stamp as long as the President and the Senate are in the hands of 1 party. That’s pretty short-sighted for a party that claims to be “progressive”.

The other issue regarding power grabs is that the Supreme Court has become the Left’s legislature of last resort. If you don’t like a law, and you can’t get the votes to change it, find a friendly judge who will reinterpret the law to fit your views. Of the 3 branches of government, it is the least democratic (small D) and the least republican (small R).

If, that is, it becomes a body that is given the power to, not just decide a case based on the law as written, but to decide based on what the judge thinks the law ought to say or ought to mean.

The 1973 Roe v. Wade was the epitome of this, and some would say it’s the snowball that started the avalanche. The Supreme Court’s decision had to, by its own admission, assume that a right to an abortion emanated from what they called the penumbra of the right to privacy; a concept which itself is not in the Constitution. What the court did was override all state laws at once by making up a constitutional “right”. This is what conservatives mean by “legislating from the bench”; reinterpreting the words of the Constitution (and sometimes, as in this case, not even bothering with the words) to create what is essentially a new federal law. The decision even setup the trimester and viability frameworks under which abortion could or could not be considered. That’s not a declaration of constitutionality; that’s a bill becoming a law with the mere pounding of a gavel. Someone should apologize to Schoolhouse Rock. (Yeah, I’m old enough to make that reference.)

The Obergefell decision is, of course, another example of this, and it highlighted again one of the results of the Left making the Supreme Court the legislature of last resort; overriding the laws of the 50 states in favor of an outcome rather than in favor of the Constitution. In his dissenting opinion, Chief Justice John Roberts said this:

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.”

That line comes from a Supreme Court case from 1905, Lochner v. New York. In that case, many judges have since determined that the court did something similar there; sided with the policy rather than the law. Roberts continued later:

The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” … Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner.

But the problem for the Left has been that they want their beliefs on everything enshrined in federal law for all to follow, but have had a tough time getting the votes to do that. Thus, judges and justices coming from that side of the aisle have shown us that their decisions are increasingly made less on the law and more about politics. They’ve grabbed power to the Supreme Court, but the power they grabbed may now be used against them. The Court shouldn’t have that power, but now it does. It’s understandable that they are concerned over this, but it is a situation of their own making.

Conservative pundit and former Consider This interviewee John Hawkins put it this way: “Conservatives believe SCOTUS judges need to be originalist umpires that just go by the Constitution. Liberals want the SCOTUS to legislate on their behalf. If we had 9 originalist judges, it wouldn’t be a “conservative” court, it would just be doing the job it’s supposed to do.” And another Consider This participant, Dale Franks of the Observations podcast, said this, “If you’re crying because Anthony Kennedy is retiring, have you ever thought that, if the Federal government had less power, you’d care less?”

Filed under: AbortionJudiciaryMarriageSame-sex Marriage