So what good is a conservative Supreme Court majority if not to eliminate some unconstitutional rulings. What do you think will be first?
An enormous amount of digital ink has been spilled in the last week or so about the coming Supreme Court vacancy and who might fill it and how that will play out. And these are truly momentous questions involving nuances of political strategy that could change the balance of the Senate political make-up. In other words, really hot stuff and absolutely chock full of fat-soluble vitamins.
But let’s jump the gun and talk about some really exciting things. Let’s assume for the sake of argument that the Senate manages to keep their act together and approve an actual conservative replacement for Anthony Kennedy. And let’s further assume for the sake of argument that John Roberts isn’t the Manchurian Justice that he seemed to be during the Obamacare deliberation. Then, what are the possible constitutional questions that could allow the new conservative majority to show its quality? Let’s make a list.
- I think the least likely early result of the new majority would be a test of Roe v. Wade. This is the thermonuclear case and I believe it will be a while before SCOTUS tackles something so controversial. After all, energizing the female vote against Republicans during the beginning of a conservative court majority would threaten the ability of a very narrow Senate majority right before the mid-terms. So I think this will wait at least a year or more.
- I think the most likely early test of this new majority will be a revisiting of the gay marriage vs. religious freedom question. And here is where I think that the Court will score an easy victory. I would be shocked if the Court does not hand a complete victory to religious tradespeople who object to being forced to participate in homosexual weddings. In my estimation this will be a great morale booster for conservatives and a well-deserved rebuke for the brown shirts in the LGBTQ
- Removing the Constitutional mandate for gay marriage would be a very bold move. Seeing that this would directly attack the precedent set by Anthony Kennedy just a few years ago it would represent a refutation of the narrative that has been developing in the Courts for the last twenty five years. But I think it would be the smart thing to do. Unlike Roe v. Wade, the shortness of time that has passed since the precedent was set limits the disruption caused by allowing the individual states to pass their own laws on either side of this issue. The Federal government could even restore the Defense of Marriage Act if it was politically expedient. And there is a real grass roots appeal to allow states that don’t favor the homosexual life style to have their say.
- Questions about the Constitutionality of Affirmative Action should be front and center in this Court. Even past verdicts by the Supreme Court when more liberal justices were represented recognized the contradictory nature of a clearly discriminatory practice sanctioned by the United States Government. It is long past the point where reverse discrimination makes even bad sense. And the way the Left has used it to weaponize identity politics against the white population needs to be shut down before it does anymore harm to the unity of the country.
- The constitutionality of the Patriot Act and other post 9-11 security over-reaches need to be reconsidered. The recent actions by the FBI and the other intelligence gathering agencies highlights the runaway nature of these intrusions on privacy and an originalist interpretation will go a long way toward re-evaluating the current imbalance favoring law enforcement over due process.
- And a final major item that could be adjudicated is the Constitutional protection for homosexuality. That was another constitutional protection discovered by Justice Kennedy. Here is another social question that used to be a state matter until the Supreme Court overstepped.
So, this merely my speculation. What do you think? What’s your logic? Leave a vote.
Is John McCain alive or dead? If alive, can he vote? Which way would he vote? After all he does love to spoil things. Assuming he will not be a factor, is Susan Collins the weak link? If she is, can she be persuaded? Is she up for re-election? What other republican votes are question marks? Could Manchin from West Virginia be convinced to vote against his party? If we don’t have the votes how likely is it that the mid-terms will increase the Republican Senate Majority? Should we try now and then after the mid-terms?
These are a few of the question that would need to be answered before trying to figure out if and/or when a conservative justice could get through the Senate.
And the other big question is whether Roberts is a ringer. Does he need to be outvoted too? If that’s the case we’ll need Ginsberg to go too.
So, as with all things Washingtonian, there are wheels within wheels and waiting is an integral part of the game. But so far Trump has a pretty good track record of getting the luck. If he gets a good man in then we can hope to know the answer to some of the Roberts questions pretty quickly. And if Roberts does turn out to be a ringer that’ll be just one more reason to distrust all things Bush and celebrate dodging the JEB! bullet almost as much as the Hillary one.
So, my guess, McConnell will spend a little time doing his math and making sure he completely understands the dynamic. Now that he and President Trump have normalized their relationship I expect they’ll coordinate carefully on the when and the how. They may spring it pretty quickly when it’s time and not give the Media or the Dems a lot of time to screech. McConnell indicated the vote would be in the fall. Maybe that’s a ruse. Maybe they’ll surprise everyone and do it before Labor Day. I’m not an expert on the machinery of the Senate so I don’t know how likely that is. My guess is McCain may be an important piece of the puzzle. His wife is touted to be in line for the job when he dies. How this affects the vote is anybody’s guess but my bet is that she’s a lib. For that reason, they may not wait for her to be seated.
Okay, so that’s the horse race. Now, why is this so damn important? Well, because if Roberts isn’t a ringer and we get another Gorsuch or Alito then we will have the first conservative Supreme Court since before I was born. In fact, we haven’t had a truly conservative Supreme Court in over a hundred years. Can you imagine if SCOTUS decides that all the Constitutional mandates that the activists judges have discovered over the last fifty years (abortion, gay rights, gay marriage, affirmative action, federal encroachment on States’ Rights, assaults on the First and Second Amendments) are not? And instead throws these decisions back to the states to decide? That would be a revolution. It would mean that instead of one homogeneous culture there would be several. And that might be the beginning of a great unraveling. Or it might be the occasion for a rethinking of many policies that were thrust onto the people from above by an elite that thought it was the best and the brightest and therefore ought to prevail against the will of the people. In places like Texas, Utah and the Old South more conservative populations would be allowed to live the way they wanted without the federal government harassing and scolding them for their values. To my mind that would come very close to restoring America to its essential virtue, a place where you are free to live the way you want without the government constantly interfering. And that sounds more or less like heaven to me. So, here’s hoping the math works out. Let’s hope the final sum is a positive. I’m tired of negative.