Our traditional narrative of the Supreme Court in recent years said that conservatives held a 5-4 advantage on the Court, with Anthony Kennedy being the swing vote. That was not the best description, and the left knew it. When it came to social issues, liberals held a 5-4 advantage, no question. Now
god-king Emperor Justice Kennedy has abdicated retired and progressives are reeling from the announcement. President Trump now has the opportunity to replace Kennedy with a solid originalist, and end the left’s dream of turning the Supreme Court into a super legislature to enact their social agenda
The Leftists’ Reaction
The left, and even more moderate to liberal Republicans, have laid out various litmus tests for whomever Trump should nominate. As with all Republican-appointees to the High Court, senators and pundits alike are homing in on what the nominee believes about “stare decisis” or precedent. By which, of course, they do not actually mean precedent per se, but Roe v. Wade.
For them, the Constitution is a living and breathing document that needs to change with the times because it was written in 1787, and that was a long time ago. Roe v. Wade was brought down from the mountain and given to us by our Supreme Court demigods and can never be changed because it was decided in 1973 and that was also a long time ago. As for precedents the left does not like, well that just makes you a gun-nut or a shill for big corporations. The Constitution that needs to change with the times can only change in one direction. Some precedents are more equal than others.
If the left had not already lost it, Kennedy’s retirement has caused the hard-left base of the Democratic Party to absolutely lose it. Now that they have potentially lost their social majority on the Court, some on the left, from traditional left-wing websites, to the more radical, to the academics, have now come out in support of court packing (see here, here, here, here, here, here and here). They have failed to see that even if they pack the Court, there is nothing to stop Republicans from repacking it. Furthermore, for many of these more hardened left-wing activists, they have spent the past year-and-a-half calling Trump a fascist, Nazi, or simply a wannabe dictator. Yet, they have no problem endorsing such a naked power grab. Failing to see the irony, self-described anti-fascists have endorsed a tactic of dictators everywhere.
The Left’s Dream for SCOTUS
For the left, the Court exists to act as a third legislative body. Justices are supposed to enact the left’s legislative agenda when Congress or the state legislature decline to enact that agenda. What matters is not some legal rule or Constitutional provision; rather, what matters is results and how a decision will affect access to health insurance, public sector unions, or a certain subset of the population.
Republican appointees have a tendency to “evolve.” Justices John Paul Stevens and David Souter were Republican appointees. Justices Anthony Kennedy and Sandra Day O’Connor went astray on certain cases for extra-constitutional reasons, as has Chief Justice John Roberts. One would be hard pressed to name one controversial case with a conservative outcome in which a Democratic appointee cast the deciding vote. Democratic appointees are not under the same pressure to “evolve.”
As for Democratic senators, they too are results driven. Republican appointees received an average of 60.5 votes, while Democrat appointees have received 78.5. Anyone who says that this is because Republican appointees are more radical or more activist is a hack and is full of it.
Anthony Kennedy’s resignation has exposed the fact that the left views the Court as a super legislature, and their belief that some precedents are more important than others prove it. Their support of court packing proves it while failing to see that packing the court would turn them into the fascists they claim to hate.