With the inauguration of President Obama to a second term, conservatives must rely on two branches of the government to prevent his full-scale attempt to rewrite the Constitutional balance of powers, and push the nation to the far left in the process: the House of Representatives, and the Supreme Court.
It’s a sad state of affairs when conservatives have to rely on the Supreme Court, which has long been a bastion of anti-Constitution tyranny. For decades, the unelected robe-wearers have interpreted the Constitution as though they were reading Keats, finding meanings that aren’t, weren’t, and will never be there in order to justify their leftist agenda. Thus the Court that once declared blacks unequal (Dred Scott) also says that abortion is a Constitutional right (Roe v. Wade); the Court that once decided it was Constitutional to imprison Japanese Americans (Korematsu) also says that private property may be seized and handed to other private parties (Kelo); the Court that once stated that segregation was in consonance with the 14th Amendment (Plessy v. Ferguson) now says that the government can force individuals to buy products the government likes (National Federation of Independent Business v. Sebelius).
Suffice it to say, then, that the Supreme Court has been no friend to Constitutional conservatism.
But now, with the President hell-bent on shifting power to the executive and overriding nearly every element of the Constitutional framework, it is up to the Supreme Court to stop him. There’s only one problem: the swing votes on the Court are currently turncoat Chief Justice John Roberts (thanks, President Bush!) and volatile Justice Anthony Kennedy (thanks, President Reagan!). Neither is a consistent fifth vote for Constitutional originalism.
But they’re better than the alternatives. In his first term, Obama appointed two of the most liberal justices ever to sit on the bench: Justice Sonia Sotomayor, she of the “wise Latina” predilections that have nothing to do with the Constitution, and Justice Elena Kagan, the partisan hack who helped Obama create the flimsy legal justifications for Obamacare as his Solicitor General.
And liberals are one vote away from another Dream Court. With a dominant majority in the Senate, Democrats are now moving to do away with the filibuster altogether, which would prevent the seating of the most leftist possible justice imaginable to replace Justice Antonin Scalia (almost 77), or Justice Kennedy (almost 77). Justice Ruth Bader Ginsburg (almost 80) will undoubtedly go during this term, but she is an ardent leftist in any case.
So the conservative strategy on the Court is now twofold: hope that the so-called swing votes don’t wake up on the wrong side of the bed that day, and hope that they don’t die.
This is the problem with a Supreme Court appointed for life and granted wide-ranging powers of judicial review in general. They become a superlegislature, supposedly wiser than the rest of us; the rest of the political branches have an incentive to toss all constitutional questions to the Supreme Court to avoid blowback. And thus federal power grows.
Ben Shapiro is Editor-At-Large of Breitbart News and author of the book “Bullies: How the Left’s Culture of Fear and Intimidation Silences America” (Threshold Editions, January 8, 2013).