OP-EDS

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November 7, 2005

The Left’s legal sleight of hand: Will it work?

Liberals have completed their politicization of the Supreme Court.

A Supreme Court justice, once a relatively obscure legal scholar whose job it was to determine whether a law was forbidden by the Constitution, has been elevated to the status of Emperor King and granted the power to draft and veto legislation according to whim.

It’s hardly surprising that “qualifications” have been rendered irrelevant. What good is vast experience, a top-tier degree, or a brilliant legal mind when the nominee disagrees with you politically? And what concern are shoddy credentials or inconsistent opinions when the candidate agrees with you about Sea Turtles and the War on Drugs?

The Democrats lost control of the House, they lost control of the Senate, and they lost control of the White House. (This is purely a quantitative analysis. The Republicans appear, on a purely numerical basis, to enjoy majorities in both houses of Congress as well as the Executive Branch. Which party actually wields the power is a point of contention.) This made it somewhat more difficult for them to pass laws. So they turned to the only remaining branch—the Judiciary. The Supreme Court isn’t really supposed to make laws, so in the job description liberals crossed out “legal expert,” wrote in “Philosopher-King,” and proceeded with the spinning.

Liberal “punditry”—perhaps “hysteria” is a more accurate description—now involves picking two or three subtle and complex legal cases and taking the result completely out of context.

For example, liberals cited a 1991 decision wherein Samuel Alito upheld a Pennsylvania law requiring married women to notify their husbands about their abortions. Planned Parenthood shrieked that Alito had demonstrated a “callous disregard of battered women,” and much of the left wing adopted similar tones of outrage. The most jaded liberals seized this example to further the politicization of the courts, and their naïve followers were credulously shocked at Alito’s insensitivity to the plight of pregnant married women.

But Alito wasn’t being insensitive at all. He was just doing his job, which is to decide whether a law is constitutional. He wrote that “The Pennsylvania legislature presumably decided that the law on balance would be beneficial…we have no authority to overrule that legislative judgment.” Notice that he ruled the law was not unconstitutional, not that it was good. He was very clear on that point. He went on to write that the court lacked the authority to overrule such a law “even if we deem it unwise or worse.”

He also made a big deal of kowtowing to Ms. “Common Sense” O’Connor’s “undue burden” gibberish. That showed way too much deference to precedent, if you ask me, but that’s a discussion for another day.

The liberals’ politicization stunt confused conservatives, who had been accustomed to the distinction between strict constructionism and judicial activism. Conservatives want, as they always have, a justice who will rule based on whether a law is Constitutional, not whether it is a good law. (If tomorrow California passed a law forbidding people from eating cheese on Tuesdays, that law would be perfectly constitutional. If it forbade eating Wisconsin cheese in particular, then it would be unconstitutional, but I digress.)

Once Democrats and Republicans had begun these ridiculous non-arguments—“He’s against pregnant women!” “But he’s for the Constitution!” “But he hates women!”—and thoroughly confused everyone except a handful of legal wonks, Democrats threw another curveball by redefining “judicial activism.”

Whereas “judicial activism” had previously referred to decisions not justified by the words in the Constitution, liberals decided that was inconvenient and redefined “judicial activism” as “striking down laws.”

Chicago’s own Cass Sunstein, a frequently cited legal scholar, has been instrumental in the liberal redefinition of judicial activism. In a June 1999 article in The New York Times (“The Courts’ Perilous Right Turn”), he writes that “Conservative politicians often complain about the decisions of liberal federal judges who…have struck down laws restricting abortion and regulating sexually explicit materials.” He then claims that “judicial activism on the part of conservative judges is a much more serious problem,” citing a ruling in which the Court of Appeals for the Fourth Circuit struck down the Violence Against Women Act.

Let’s take a second look at Sunstein’s sleight of hand.

He is implicitly comparing conservative judges’ abortion-neutral originalist stance—that the legality of abortion should be left to the states, given that abortion is not mentioned in the Constitution (save the extra-secret “privacy” clause that only Mr. Sunstein and Ms. O’Connor are able to see)—to the violence-neutral originalist stance that violence against women did not have enough to do with interstate commerce to justify its enactment. Neither of these positions is at all activist. Strict constructionism comprises refraining from striking down laws that are not unconstitutional and striking down laws that are constitutional.

The 10th Amendment of the Constitution reads as follows: the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”