I appreciate the many thoughtful comments on the first part of my debate responses to my lefty friend. Here’s the second (and final part), though I’ve got a few thoughts to post on Friday, asking what many of you asked yesterday: Have any lefty acquaintances of yours ever become conservatives, and if so, did debates with conservatives influence their decision?
“I hadn’t really thought about this until the last 6 or 7 years or so, but there is only one part of our entire federal government which has no explicit checks on it, and that is SCOTUS.
The legislative checks the executive, by passing legislation and over-riding presidential vetoes. The executive checks the legislative through the veto, and the president controls foreign policy and the executive branch (though dozens of partisan leftist judges have said that that’s over now, if they have their way).
The judicial branch checks the legislative and executive branches, and appellate courts check district courts, and SCOTUS can check appellate courts. But as it stands, there is no means by which anybody – not the legislative, the executive, or lower courts – can check SCOTUS. It is the highest court, and by definition it dictates what “the rule of law” means, based solely on how it interprets the constitution.
That was not always the case. In fact, SCOTUS first introduced that idea (by inference from the constitution) giving themselves that power in 1803 (in Marbury v Madison), and since the executive and legislative didn’t object or stop them, that never-voted-on arrangement hardened into the law of the land.
Theoretically, the legislative can check SCOTUS by passing constitutional amendments. But since post-Marbury, SCOTUS is the final authority on the constitution, in reality, it could just declare that a recent, legitimately passed amendment is actually unconstitutional, thus nullifying it. (That’s basically what SCOTUS does every time it overturns a precedent.)
But in the real world, we know that that’s not completely true. Because if it were, any 5 SCOTUS judges would be de facto dictators over us all. I’ll give you two quick examples to illustrate the concept through absurd analogies. Say you’ve got a SCOTUS with 5 far-right justices, and they say that by proposing a unitary executive, the constitution meant that the president has all the powers of a dictator. So Trump IS a dictator from this day forward, and can declare himself president for life, abolish the right of leftists to vote, etc.
(I know: that’s actually very close to what some on the far-left believe right now, in their TDS fever dreams!)
Or consider the opposite: a SCOTUS with 5 far-left judges declares that hidden in the “emanations and penumbras” of the constitution is the never-heretofore-detected entitlement of all Americans to a utopian socialist scheme of free food, shelter, health care and education from the cradle to the grave. (That’s actually pretty much how we got abortion as a “constitutional right.” The Warren court “discovered” a right to privacy in 1965 in Griswold, and then eight years later, the Burger court piggy-backed – citing only “emanations and penumbra” – on that ruling to “discover” a right to abortion in Roe that no Founder or American citizen had ever found in two centuries of reading the constitution.)
And since those entitlements would require a quasi- or fully totalitarian government to declare farmers, construction workers, doctors etc. to be indentured servants, and coerce them into growing the crops, building the housing and giving the medical care that those new “entitlements” demand – which is what happened in every socialist/communist state to a greater or lesser degree – SCOTUS could declare that we are henceforth a communist country, and personal freedom has been abolished.
What those absurd examples tell us is that the only real check on SCOTUS’s power is the large-scale consent of the voters. Because while SCOTUS has no theoretical checks on its power, it also has no enforcement mechanisms for its rulings. The executive and legislative have police, courts and military power to enforce their laws on people, and they do so regularly. SCOTUS has nothing, unless the executive and legislative voluntarily subject themselves to its rulings, and then force them on the people.
This has happened multiple times, the most famous being when Lincoln suspended habeas corpus for four years during the Civil War. The Taney court said he couldn’t legally do that, and told him to stop it. And he said, “I’m a Republican president, and I’m going to defeat the Democrats and free their slaves, and I’m not going to let your rulings stop me, so suck it, Trebek.” Or words to that effect.
The concept underlying this idea was probably best stated by Andrew Jackson, when he forced the movement of Indians on the Trail of Tears, despite the Marshall SCOTUS ruling that that action was unconstitutional. Jackson allegedly (and it appears, likely apocryphally) said, “John Marshall has made his decision, now let him enforce it.” Whether Jackson actually said that or not, those words did capture his attitude – and what actually happened – when nobody enforced the SCOTUS ruling, and the Indians got screwed.
Many commentators on both sides regularly accuse presidents on the other side of blatantly defying the court. Many conservatives and independents said that Obama’s DACA and DAPA actions, for example – unilaterally changing immigration law without legitimate legislation from congress – were blatantly unconstitutional. And Obama agreed, admitting dozens of times in public that he couldn’t legally do that without action from congress…right up until he did it! (I don’t like that guy!) SCOTUS eventually allowed a 5th circuit ruling saying DACA and DAPA were both unconstitutional to stand – which again, Obama and everybody else knew had always been the case.
But Obama – and Biden after him, on all the examples I gave you in my last email – both defiantly said, “The constitution says X, but let somebody enforce it.” In all those cases, SCOTUS eventually did slap them down, and they only then stopped defying the law. But by then, they’d gotten what they’d wanted, and nobody was able to reverse their illegally gotten gains: Biden won the midterms (in part) by illegally pushing student debt transfer to the taxpayers, and he forced millions to take an experimental vaccine against their will, and he forced landlords to take losses and give free rent to tenants for 8 months before he belatedly stopped. And over a decade since Obama knowingly defied the constitution to keep illegals here through DACA and DAPA, many millions of them are STILL here.
And like psycho kids who kill their parents and then ask for mercy from the court because they are now orphans (!), the Democrats are now insisting that the DACA and DAPA illegals must be allowed to stay, since they’ve been here so long, and have now established roots in America. (That takes some balls!)
Which brings us to today, and the hundred-plus legal actions against Trump, and the troubling possible outcomes of them. The lefties are saying that every action that Trump takes is creating a “constitutional crisis.” Conservatives and some independents are saying that the lawfare being waged against every presidential action is essentially giving 677 local judges the power to totally paralyze the executive branch – a result that has never happened before, and was never contemplated in the constitution – and is what’s causing a “constitutional crisis.”
I think there’s a chance that these will become self-fulfilling prophecies. I’m hoping that SCOTUS rules correctly, and allows Trump to do what all presidents before him have done: control budget and personnel in the executive branch; enforce immigration and civil rights laws as written, etc.
But if SCOTUS doesn’t do that, I think Trump – or most presidents, really – could possibly follow the examples of Lincoln and Andrew Jackson, and say, “Roberts has made his ruling, now let him enforce it.” And then that would REALLY be a constitutional crisis.
The reason I think that could happen is the crucial difference between now and the earlier examples: Trump would have the consent of the majority of the governed. It’s true that Biden and Obama both eventually did submit to the SCOTUS rulings. But they only violated the law in the first place because they knew that they couldn’t have gotten what they wanted legitimately, because the majority of the public was against what they wanted to do. And they only belatedly submitted in the end because they’d gotten what they wanted, and because public outrage would have produced the crisis that their continuing lawlessness would have justly brought down on them.
Trump, on the other hand – and I know you hate his guts, and think he’s wrong about everything – is doing everything he ran on, and that the majority of the voters want. (In fact, even though he’s always been a divisive figure personally – because of his tendency toward assholery! – achieving personal approval ratings of 50/50ish at best, his major campaign promises all received majority polling approval.)
During the campaign, he clearly laid out the agenda that the dozens of leftist mini-president judges are now thwarting. He said he would close the border and build a wall; deport the illegals, fight DEI, etc.
I’m not saying that popular approval means everything, and that the majority should get everything it wants. (At one time, majorities in the south wanted slavery, majorities approved of mistreating Indians, and of FDR penning up Japanese Americans, etc.)
But I think the far left of the Democrat party – and their partisan judges – are effectively arguing that majority will means NOTHING, if it goes against their own political preferences. The people may have voted to enforce the border, protect women, cut bureaucracy, and all the rest, but they can pound sand, because a few dozen local judges know better.
And that’s NOT the way our system is supposed to work, or has ever worked!
It’s not about Trump, man! It’s about us, and what we voted for. (And by we, I don’t mean just conservatives, but also the independents who won him the election, and the higher number of blacks, Hispanics, married women, and young people than any Republican president has won in over 40 years!) Those of us who loathed Biden – and those who gave him a chance, but quickly soured on his nasty, incompetent governing and obvious mental deficiencies – weren’t happy, but we didn’t riot for months like antifa and BLM, and we didn’t try to assassinate him. Most of us thought the election had been rigged, but we couldn’t prove that it had been stolen, so that’s the way it goes. He won a narrow victory, so he got to set the agenda, and we had to live to fight another day.
Well, now it’s another day, and we played by the rules, and we won. Convincingly, if narrowly in the popular vote. But now we’re told that we can’t get what he ran on, because it makes the other side mad? To quote Dr. Evil, “How about NO!”
I think that defying the will of the majority of the people in that way is dangerous, and I think that what Schumer illegally threatened to do to judges who defied his will could eventually happen to the far left: they’re sowing the wind, and they might end up reaping the whirlwind.
I REALLY don’t want that to happen, and because I’m fundamentally an optimist, I don’t think that it will. But the Boasberg-types on the district courts are playing with fire.
To wrap up (finally! 😊), I think a healthy fear of the kinds of tensions I’ve just summarized is part of what underlies the conservative/originalist view of the constitution and SCOTUS: judges should be humble, and do their best to rule based on what the constitution says, regardless of their own political preferences. (Thus conservative judges often vote against their own politics, as when Scalia upheld flag burning, even though he repeatedly said that he’d love to see it outlawed, etc.)
The progressive judicial view, on the other hand, is “the living constitution” theory, which holds that since society is always evolving, SCOTUS should be willing to change our laws to reflect that evolution. (Sarcastic jerks like me call this the “just make shit up” approach. 😊) And they don’t mean to do that through constitutional amendments, the way the mostly conservative, genius Founders set things up – which is very difficult to do, b/c it involves that pesky “respecting democracy” stuff — but through fiat, by the diktat of 5 legislators in robes.
Two quick examples of that: Before Roe, the entire nation was working through the issue of abortion on a traditional, consent-of-the-governed, federalist basis: conservative states were passing laws to make abortions harder to get, and liberal ones were making them easier. But then SCOTUS stepped in and short-circuited the democratic process, and dictated a poorly reasoned and controversial new “law of the land,” forcing it down on all 50 states.
The Obergefell decision in 2015 did the same thing with gay marriage. Laws on that issue were being proposed, debated and voted on in many states. (And, infuriatingly to progressives, usually being voted down, even in deep-blue CA.) Then SCOTUS stepped in, “discovered” that the Founders and the constitution had always wanted gay marriage everywhere, and forced that decision on all 50 states.
Interestingly, I think the intervening years have proven that even though both of those decisions were arrived at in an unconstitutional and wrong way, one of them has the democratic approval of the voters, and the other does not. Obergefell is the former: society was evolving toward more tolerance of gay marriage, and many if not most states would likely have approved it by now anyway.
(In fact, even in 2015, a reasonable, democratic compromise was being worked out. “Civil union” laws were being passed that stopped discrimination against gays in relationships – not recognizing their marital rights in divorce or inheritance, or their right to ‘next of kin/spousal privileges’ in health care situations, etc. – without coercing the majority into calling that “marriage,” when marriage had never meant that before. That seems like a reasonable, compassionate way to work out some differences without screwing with people you disagree with. And it was interrupted by an arrogant court who acted like a legislature – a fundamental breach of our Founding and constitutional law – and created a new law.)
How do I know that Obergefell has democratic approval, despite the legally illegitimate way it was forced on us? Because even though it’s only 10 years old, and many millions of Americans still don’t accept the validity of calling gay unions “marriage,” there have been no serious challenges or widespread social unrest over it. The country has accepted it and moved on.
The Roe court did the same thing – legislating from the bench in a way that invalidated the many state legislative debates about abortion that were going on, and dictating to the entire nation by making up a new, foundational law that had never existed before. But the reaction was the opposite of that to Obergefell: that law was fought over and challenged constantly for 50 years, with no signs of passions diminishing. Every January, millions of Americans protested in frigid temps in DC in the March for Life, which mourned the anniversary of the Roe decision. And finally, after half a century, a quasi-originalist/conservative court undid the Roe mistake (IMHO), in Dobbs.
I know that most progressives are still outraged because they think that Dobbs “banned abortion.” But of course it did nothing of the sort! It just sent abortion back to the states, where it belonged. And the enthusiasm for abortion rights in most blue states has given Dems a lot of electoral victories over the GOP in the last 3 years, and by some counts, there are more abortions happening now that there were before Dobbs. (Which I find depressing, as democratic outcomes often are.)
The result of Dobbs can best be summarized in a political cartoon I saw in its aftermath: an angry pro-choice crowd is confronting the SCOTUS justices. Their screams are in a speech bubble: “5 judges should not be allowed to dictate abortion law!” And a thought bubble over the 5 quasi-originalist judges says, “That’s exactly what we just said!”
So I think Dobbs resulted in a just outcome: conservative states in which voters believe that abortion after viability – or 15 weeks, or 6 weeks, or whatever the voters decide – is infanticide-adjacent have banned later term abortions, with the big 3 exceptions. Progressive states, in which voters believe that a baby is part of the mother’s body rather than a separate entity, or at least that a mother’s choice supersedes those of a fetus/zygote/tissue mass/baby (?), have passed laws that allow abortion – in 9 states plus DC, right up until the moment of birth! (I almost can’t believe that that is true, but in AK, OR, CO, NM, MN, MI, MD, NJ and VT, if a doctor can get a scalpel into a baby’s skull before it crowns out of the birth canal, that killing is totally legal!)
As a conservative, and a sinful, flawed follower of Uncle Jesus, I appreciate our federalist system, which allows me to not violate my conscience on this issue. I am free to (and will) never live in a blue state that would force me to tolerate (and pay for) abortions after viability, which I believe is murder.
Similarly, progressives are free to never live in a red state governed by laws passed by troglodyte, evil, patriarchal fascists like me (in their view 😊) who would prevent them from aborting their babies at will.
In this fallen world, I think that is the best possible outcome we’re likely to ever get. Especially when the alternative is to allow arrogant judges to force everyone to violate their consciences based on those judges’ whims, and/or whoever controls the White House and congress on any given day.”
Martin Simpson 