President Joe Biden calls the recent rulings of the Supreme Court outrageous. Celebrities are vowing to leave the country. Democratic Senator Elizabeth Warren is calling for “packing the court” to add justices that favor the Democratic Party’s political agenda. What did the Supreme Court do that is so outrageous? Restore democracy!
It has been the strategy of the left to use the courts, or the government bureaucracy, to approve their political agenda when they can’t muster the votes they need in Congress. The party that is constantly accusing Republicans of destroying democracy has been doing exactly that for decades.
The Wall Street Journal editorial board sets the record straight. They say, “This isn’t a partisan Court looking for preferred policy outcomes. It’s a Court that hews to the tenets of originalism, with different shades of emphasis by different Justices. The Court’s jurisprudence is focused more than anything else on who under the Constitution gets to decide policy, not what that policy should be.”
“This is the main reason Democrats and the press corps are furious about the Court’s decisions. For decades they have counted on a majority of Justices to deliver or bless the policy results they want: on abortion, voting rights, healthcare, racial preferences, climate and economic regulation. You name it, the Court found ways to deliver it with balancing tests, trimester analysis, and the discovery of unenumerated rights between the lines of the Constitution’s text.”
For these same decades conservatives have argued that the role of the Court should be to support rights that are actually in the Constitution, but otherwise to enforce the separation of powers so each branch of government stays in its lane as defined by the Founding Fathers. That is called democracy.
As a conservative, pro-life Republican, I wish that the Court had ruled abortion is illegal, because I know that life begins at conception and all abortions end a life that is holy and sacred to God. But the Court didn’t do that. They merely said the issue must be decided by the states, not the federal government. When the states get done deciding this issue, about half will outlaw abortion and the other half will make it legal, perhaps even easier to obtain than before the Court’s decision against Roe v. Wade. Sadly, I believe we will still have roughly the same number of abortions – they’ll just be done in different places. But that’s called democracy.
The Court’s decisions do not all add up to conservative victories. In its administrative law cases, the Court isn’t dictating outcomes. It is reasserting its role as a traffic cop among the three branches of government. On immigration law, two conservatives joined the liberals to side with the White House – the “Remain in Mexico” law has been overturned. But on climate, six Justices found that the Biden Administration had exceeded the authority that Congress provided in legislation. If they want to regulate climate change, they will have to get Congress to pass laws to that effect.
The Court is also taking a more active approach to protecting the rights that the Constitution does mention – like the First and Second Amendments. On gun rights, the Justices put new substance into the individual right to bear arms recognized by the 2008 Heller decision. Politicians can still regulate guns, but they must do so more carefully so individuals can defend themselves outside their homes.
On religious liberty, the Court cleaned up decades of confusing instructions to lower courts on the separation of church and state. The Justices supported the free exercise of religion by supporting private prayer in a public place and barring discrimination against religious schools. This doesn’t mean states must aid private schools. But if they do, they can’t deny that aid to religious schools.
The WSJ editors sum it up well: “This is a Court for the Constitution, and that means the right and left will have to win their policy victories the old-fashioned way – democratically.”