I read the Alito opinion. I listened in the news to the fears of the Left about future decisions on other unconstitutional decisions. And I think they may have a good reason to be afraid. If this court was willing to overturn Roe v. Wade, then there isn’t any additional justification needed to overturn other unconstitutional laws.
The lack of constitutional grounds to declare gay marriage a national right is exactly the same as the problem with making abortion a right. And some things are even easier to attack. Affirmative action is actually prohibited by a constitutional amendment. It was even acknowledged to be unconstitutional the last time it was allowed to stand by the Supreme Court. Each of these examples of judicial malpractice can be addressed in exactly the same way as Roe v. Wade. The question is will these justices continue to display the courage they seem to have right now?
I think they will. And I think we’ll have the answer to the question in July. That’s when the decision on Roe v. Wade is supposed to be announced. If the five justices manage to stand up to the barrage of intimidation and character assassination that they are currently receiving then I think they’ll be hardened enough to move forward to other areas of the law where equally unconstitutional decisions have been made before.
I find this possibility exhilarating. For my whole adult life, I have watched the Supreme Court create unjust laws and then fail to reverse those decisions when the chance to do so arose. Justices named by Reagan, George Bush Sr. and George Bush Jr. were touted as conservatives and almost invariably turned out to be liberals. But now, so many years later it looks like we’re there. And half the thanks have to go to Mitch McConnell and Donald Trump, two men who cannot stand each other. I find that highly ironic. But I won’t look this gift horse in the mouth. It’s too valuable.
Now, I’m fully aware that more than half of you are rolling your eyes and thinking, “What a hopeless optimist!” And I can’t blame you. We’ve been down this road so many times before that it’s completely understandable that most folks don’t want to get fooled again. It’s just like that cartoon of Lucy pulling the football away from Charlie Brown just as he’s ready to kick it. And ends up flat on his back. For the last year I’ve been very doubtful that the Supreme Court would go all the way and overturn Roe altogether. I figured they’d approve the fifteen-week limit in Mississippi and leave it at that. But apparently, they’ve gotten together the backbone to admit the truth of the situation and make an honest ruling. And that’s amazing.
So, if in July they back down and issue a watered-down decision I’ll openly admit my foolishness. I’ll admit that we can’t “vote our way out of this.” But if I’m right then I’ll expect the same admission from the skeptics and dissidents that say there’s no hope of turning things around. And you know who you are out there.
It seems that the only thing that prevented the changes was that the African delegates were unafraid to say that these changes did not reflect the Christian message. Unexpected consequences of the left’s favorite buzz words diversity and globalism.
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.