Sept. 25, 2020
The late Justice Ruth Bader Ginsberg has not yet been laid to rest, but the political war over the vacant Supreme Court seat has already been joined. And for good reason. Both sides see the next Supreme Court appointment as an issue of existential proportions, but that obscures the central fact that their goals are asymmetrical:
The Left fears losing control of the Court’s super-legislative powers, while the Right seeks merely to neutralize them.
The ever-escalating war over Supreme Court picks has unfortunately become a proxy fight over divisive issues like abortion. A supine Congress—under both parties—has steadily ceded its authority to the administrative state, and to activist judges, by failing to legislate or by passing broadly-written statutes that require interpretation and invite judicial review of their application. And activist judges have been happy to oblige, aided and abetted by the Left’s strategy to deploy judges as “super legislators” to force pet policy outcomes.
The solution is to defang the courts, and on this point there is some very good news for my friends on the Left: Reducing the courts’ over-weaning legislative power by appointing solid, originalist justices has been the right’s project since the 1980s. This will have the added benefit of increasing the Court’s reputation, as people observe modest jurists who follow the law instead of making it up as they go. It’s a win-win!
The Left should take heart that the Right’s project is not judicial annihilation but de-escalation, returning the debate over contested issues to the Congress and to the states, where such matters can (and ought to) be contested with electoral accountability.