I’m not the only conservative who has recognized the “rich irony” that liberals are hollering at the conservative justices for contemplating “undemocratically” striking down Congress’s work. If nothing else, this smacks of deep ingratitude for those who have gleefully collected all sorts of trinkets from the courts in the form of “rights” never imagined by the drafters of the Constitution.
Let’s start with the premise that we are a constitutional democracy. We do not operate in a pure democracy in which Congress can outlaw free speech, invalidate contracts, deny women the right to vote or do other things contrary to the Constitution. If we had a pure democracy, we’d have no Bill of Rights to restrain the tyrannical impulses of the majority.
Next point: Unless we want to invalidate judicial review (a radical notion held by some very extreme right-wingers), it is the courts that will do the invalidating when a law conflicts with the Constitution. It would be swell if Congress restrained itself. In this case, then House Speaker Nancy Pelosi (D-Calif.) scoffed at the notion that there was any constitutional issue at play. You understand the difficulty in refereeing your own game.
Now, don’t get me wrong. I welcome the left’s newfound trepidation about displacing legislation and action by the elected branches of government. I wish the courts would adhere to that advice more frequently. And that is precisely why conservatives would limit judges to the text and intent of the documents before them. They can’t strike down laws because they are “dumb,” only if they are in contravention of the Constitution. I am delighted, however, to discover so many on the left who fear judicial imperialism.
But on this one, it’s the hypocrisy that is so stunning. On abortion, gay rights, extension of the Sixth Amendment to enemy combatants, and dozens of other hot-button issues, the left has gone to the courts, asking that it not be bound by the mere words of the Constitution. It’s the left that dreams up penembras, goes running for international law books, appeals to empathy and cites the collective consensus of evolving morals (or something; I can’t begin to make up stuff as shamelessly as non-textualists). If you think the left believes the courts should stay out of second-guessing the elected branches, spend a morning in an elite law school. You’ll hear how the courts can do all sorts of nifty things.
When my colleague E.J. Dionne Jr. decries the conservative justices’s undemocratic tendencies, you understand why that argument falls flat. And those “weird hypotheticals” are precisely what justices do when testing legal theories of advocates. (The liberal justices do it, too!) It is, of course, the court’s job to see if congressional action comports with the text, structure and intent of the Constitution. Otherwise, we have, quite simply, mob rule. When we see the opinions, we can debate the legal soundness of the majority and dissenting opinions and see which side is more willing to depart from constitutional text. (I have a strong hunch, but let’s not spoil the surprise.)
More seriously, as I predicted, the rush to vilify and impugn the justices has already begun. This, as former Justice Sandra Day O’Connor and a great many on the left have asserted when conservatives are doing the criticism, is bad for the rule of law. We should robustly criticize the reasoning of justices (what exactly is the left’s beef with Justice’s Kennedy’s staunch defense of the First Amendment in Citizens United? They never really say).
We should welcome debate about the competing theories of constitutional interpretation (as Justices Breyer and Scalia have done in public settings), and by all means, informed observers can cite all the cases and dicta they can recollect; But prejudging the results, dispensing with analysis of the rationale by which the judges will decide the case, and demeaning the professionalism of the justices and their impartiality? No, thank you. That’s a road we shouldn’t go down. And neither should those who rely on the courts (excessively, I would argue) to vindicate minority rights.