Judging by the stir in the media, one would think President Trump is poised to nominate a Supreme Policymaker rather than a Supreme Court justice tasked with neutrally applying written law to facts in specific cases. Pundits like Dana Milbank are sounding the alarm, warning the nation that the appointment of a “hard-right justice” might mean “the end of legal abortion in much of the United States and possibly same-sex marriage and other rights Americans embrace.”
What America needs to understand is that the reason the left’s pet causes are threatened is not because a “hard-right justice” is plotting to craft national policy according to his or her own preferences, but rather because he or she just might see fit to correct the abuses of judicial power that have transformed the Supreme Court from neutral legal arbiter to omnipotent national policymaker.
Many of the “rights” the left worries about are indeed vulnerable, because they are based not upon the text of the Constitution, but merely upon hopes and wishes conceived in the minds of men and then alleged by five Supreme Court justices to have been lurking, unnoticed, in the shadow of constitutional words that mean something entirely different.
The trouble with this, as the left is now acknowledging with horror, is that just as houses built upon sand will inevitably crumble, precedents built upon hopes and wishes must fall when confronted by judges with enough intellectual honesty to admit that the actual language of the Constitution cannot support them.
So it’s no wonder the left trembles at Justice Kennedy’s retirement. He embraced what is arguably the most ornate legal house ever built upon philosophical sand, to justify and preserve the “right” of abortion – the notion that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
As a quote for an autobiography, this is lovely. As an explanation of how the written words of the Constitution could be said to preclude state governments from banning abortion, it is preposterous.
For starters, it leaves no logical basis for precluding state governments from banning infanticide, incest, or rape. But the far more fundamental problem is that this sort of reasoning utterly fails to link the decision in the case (affirming abortion as a constitutional right) to the actual words of the Constitution.
What Justice Kennedy, in this instance, and other federal judges like him have forgotten is that their role is not to find creative ways to squeeze some desired meaning out of words that were never meant to contain it, but rather to simply apply legal words and phrases, in their straightforward, historical meaning, to the facts of the case at hand. The rest is left to the people and their elected officials, through the political and legislative processes.
The question for a judge is not whether the law brought before the court is a good law or bad law in the abstract, but whether it is a law that trespasses upon some actual boundary set by the words of our Constitution and fairly discernible to those familiar with its history.
Of course, we know from the Ninth Amendment that the states and the people remain free to assert and protect rights that have not been enumerated. But nothing in our Constitution provides judges with the power to announce new “constitutional” rights at will.
We, the people, have determined which “rights” are so fundamental as to be protected even from the prevailing majority’s ability to infringe upon them through ordinary legislation. By describing these most fundamental liberties – the right to freely exercise one’s religion, to speak freely, to bear arms, to be free from unwarranted searches and seizures, etc. – in the words of our Constitution, we, the people, locked them in a sort of safe deposit box. And only we, the people, hold the key to unlock that box to add to that list of rights placed beyond the reach of our elected representatives.
Those who wish our Constitution said things it does not say are right to feel vulnerable at the prospect of a return to the rule of law. We might just be on the verge of seeing the Supreme Court return to doing what courts were meant to do: to confine their rulings – and their power – to the true, factual meaning of words written on paper to express the will of the people.