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So far in this series, we've examined the profound difference between the fundamental worldviews of Left and Right, and the dire consequences that ensue when they clash. One difference we can see every day, is found in the way in which the two sides approach winning. Both Left and Right want their respective views to prevail, of course, but they have completely different understandings of how that ought to be done.
Generally, the Right's instincts are to play by the established rules - to run in elections, to vote, to sue when necessary, to color inside the lines. In contrast, the Left's motto might as well be, "The end justifies the means", if not "Might makes right" - or, as their idol Chairman Mao famously put it, "Political power grows out of the barrel of a gun." That's why we see the Left rioting and burning down cities; changing election rules by fiat to ensure their own victories; and, most of all, forcing all arms of government, at all levels, far outside their original bounds of authority. Nowhere is that more clearly seen than in the doings of the Supreme Court.
The proper role of the Court has been controversial since our founding. We've written about the 1937 "stitch in time that saved nine" when Justice Roberts broadened the "commerce clause" of the Constitution so that it could be warped to permit nearly anything the Federal government wanted to do. This tendency became so far-reaching under Chief Justice Warren that our older readers may remember "Impeach Earl Warren" bumper stickers from the late 1950s.
Justice Warren won election as the Attorney General of California in 1938. He promoted the forced removal and internment of over 100,000 Japanese Americans during World War II, showing his fundamental contempt for the rights granted by the Constitution. After Eisenhower won the 1952 presidential election, he appointed Mr. Warren, who had been a staunch Republican, as Chief Justice.
Mr. Eisenhower would later call the decision "the biggest damn-fool mistake I ever made" because of the unexpectedly extreme liberal leanings he imposed while presiding over the Warren Court. The President also referred to Justice Warren as "that dumb son of a b*tch," but there was nothing he could do to undo the appointment.
Schmerber v. California (1966) established that forced extraction of a blood sample is not compelled testimony, illuminating limits on the protections of the Fourth and Fifth amendments which protect us against illegal search and self-incrimination. We are living the results to this day; that's why, for instance, it is perfectly legal for the cops to forcibly hold your phone up to your face or swipe your finger across it to unlock it, if you've been so foolish as to use those "security" methods.
Warden v. Hayden (1967) dramatically expanded the rights of police to seize evidence with a search warrant, reversing the 'mere evidence' rule. Griswold v. Connecticut (1965) struck down a state law that restricted access to contraceptives and established a constitutional right to privacy which shortly became part of the bogus justification for Roe v Wade. Regardless of your views of such issues, it's questionable whether they are legitimate topics for Federal laws - surely the Constitution doesn't grant the Feds the authority to forbid you from using contraception, but neither does it say that the states can't.
For all that Democrats insist on the "right to privacy" which underpins Roe, they happily violate privacy by compelling phone companies and credit card networks to turn over information about people who traveled to Washington DC to petition their elected representatives for redress of the grievance of certifying a fraudulent election. Privacy rights are limited to pregnant women - well, "birthing people" anyway, except that they have no intention of doing any actual birthing. To Democrats; their opponents' privacy means nothing, as would be expected of "their democracy."
These Warren court decisions gave SCOTUS jurisdiction far beyond anything our Founders intended or could even have imagined. As we see it, these are matters for states whose legislators answer to voters. It would be perfectly natural and expected for different states to come up with different answers to all of these questions, and that's very much the point - it's a whole lot easier to move from Kansas to San Francisco, or vice versa, to suit your personal tastes, than to find a whole different country to live in.
Although we've criticized Sen. Ted "Chappaquiddick" Kennedy for philandering, sexual abuse, murder (or depraved indifference anyway) and much else, we recognize his political acumen and long-term strategic brilliance bordering on genius. He saw that Chief Justice Warren had taken SCOTUS far beyond the "originalist" interpretation of the Constitution and abused our political norms to bring about outcomes that just so happened to match Sen. Kennedy's liberal desires in ways that would have been nearly impossible to achieve through legislation.
When President Ronald Reagan nominated Justice Bork for the Supreme Court in 1987, Sen. Kennedy realized that Judge Bork was a brilliant originalist who would steer the court away from legislating Sen. Kennedy's desires from the bench - in effect, he would be the anti-Warren. Sen. Kennedy orchestrated an unprecedented smear campaign against the justice.
Judge Bork was "savaged by the left" so ferociously and effectively - despite his sterling credentials and universally-acknowledged brilliance, he wasn't confirmed - that the way judges are appointed and confirmed changed forever, with politics, race, and demographics today being far more important than competence. This has led, for example, to the appointment of a manifestly racist "wise Latina" to the court.
In the words of Judge Bork, "The Supreme Court made itself, starting in the 1950s, into an increasingly political institution, and once you're a political institution with that kind of power, people are going to fight to control the institution any way they can."
In spite of this and the savage fight against Justice Clarence Thomas the following decade, the Stupid Party, having learned nothing, allowed President Clinton to appoint Judge Ruth Bader Ginsberg, a brilliant lefty who was eager to warp the Constitution to bring about her preferred outcomes such as the "legitimization" of gay "marriage."
By short-circuiting the messy legislative process which was leading to different states handling abortion in different ways - as our Founders desired when creating the "laboratory of Democracy" - SCOTUS touched off a low-grade civil war. We suspect that the Justices had no idea how their "decision" would settle nothing and would poison our politics for three generations. We rejoice in the mercy that they found no "right to die" in the Constitution when the State of Oregon wanted their blessing for physician-assisted suicide and left it to the states.
Fortunately, and to our great surprise, the Court may not be so far gone as to be irredeemable.
Why are we hopeful? Consider the remarks of Justice Thomas, who's been a staunch pro-lifer since before he was elevated to the court.
Knowing full well that there's no explicit, constitutionally guaranteed right to kill babies in the womb, Thomas asked U.S. Solicitor General Elizabeth Prelogar to explain just what in the United States' governing document allows for abortion.
"Would you specifically tell me, specifically state what the right is? Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?" Thomas asked.
"What is confusing is that we, if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written, it's there. What specifically is the right here that we're talking about?" he asked.
"You heard my question to counsel earlier about the woman who was convicted of criminal child neglect [for taking drugs which harmed her baby]. What would be your reaction to that as far as her liberty and whether or not the liberty interests that we're talking about extends to her?" Thomas asked.
Prelogar claimed she's not denying a state might have interest in that case but said they also need to consider the "interests of the woman on the other side of the scale and not being forced to continue with a pregnancy, not being forced to endure childbirth, and to have a child out in the world."
"In the old days, we used to say it was a right to privacy that the court found in the due process, substantive due process clause, okay. ... And I'm trying to get you to tell me what are we relying on now? Is it privacy? Is it autonomy? What is it?" Thomas asked.
Justice Thomas is asking which Constitutional provision the pro-aborts use to justify their argument that abortion, which everyone now knows stops a beating heart, should be permitted. We hope that his view that the Constitution is silent on the subject will justify retracting Roe v Wade entirely so that the matter reverts to the states where it belongs.
Very little will change immediately if that happens. Most blue states such as Maine have "trigger laws" in place which will permit abortion via state law if SCOTUS retracts Roe. Even Texas permits abortions in the first trimester, and Maine abortionists report increased business from travelers fleeing Texas restrictions. The news articles didn't tell us whether the travelers were masked while in transit.
If Chief Justice Roberts selects Justice Thomas to write the decision, we might get a ringing declaration that SCOTUS has no business legislating in areas where the Constitution is silent. That's the outcome we desire.
This would strike at two of the progressives' dearest falsehoods - a gestating baby is not a human being, and SCOTUS is free to rule in any manner that makes progressives happy without regard to the Constitution. Who knows? If the Constitution doesn't define a right to privacy, it might not define a right for the government to fund NPR!
Either way, this decision will change profoundly change our politics, in potentially unexpected and unpredictable ways.
If Roe stands, pro-lifers, who have focused their efforts for the past 50 years on getting an originalist Supreme Court, will decide that the peaceful political process offers them no hope. As it is difficult to compromise with Muslims who believe that God requires that they kill non-Muslims, it will be hard to compromise with people who sincerely believe that God requires that they protect the unborn by preventing murder, given that all other political methods have been tried and utterly failed.
What will they do?
If Roe falls, Democrats will redouble their efforts to delegitimize SCOTUS and pack it with more liberal judges. That would enrage the ever-increasing share of the country which believes that our Commander-in-Thief, whom some columnists refer to as President *, stole the 2020 election. As Steve Bannon says, "Elections have consequences. Stolen elections have disastrous consequences."
Neither outcome is palatable, but it's the inevitable poison fruit of SCOTUS activism which began metastatizing with the Wickard v. Filburn ruling back in 1942.
As Chief Justice John Roberts loudly preaches, but doesn't always practice, SCOTUS should confine itself to calling balls and strikes instead of legislating, and get the Federal government out of areas which the Constitution reserves to the states. Let the politicians and the people duke it out, but don't try to make the court something it isn't - we've seen the dire results of that approach, that only benefit the Left while destroying our national cohesion without which our society can't survive.
The Supreme Court, like all courts, is the ultimate example of the power and virtue of speech: the whole point of a court is to argue over things in an orderly and civilized way, as opposed to smashing each other over the head with clubs like Vikings. For this to work, though, people have to be able to present their case; Lady Justice wears a blindfold, but neither a gag nor earplugs.
The Left is already opening the next front in their war on Americanism, under the guise of addressing the "problem" of freedom of speech without which we can have neither the rule of law, nor liberty of any other sort - but, we'll explore that in the next article in this series.