When the Supreme Court Claims the Ends Justify the Means

Last month’s Supreme Court rulings certainly made it a banner one for the left. First the decision in King v. Burwell on Obamacare subsidies, and then the long-awaited and much-anticipated finding in Obergefell v. Hodges that:

…the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples…

“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Justice Anthony Kennedy wrote in the majority opinion. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented and each wrote a separate opinion, saying the court had usurped a power that belongs to the people.

And therein lies the crux of the matter: how this was done. For most people, though, I’d wager that how it was done was far less important (if noticed at all) than whether it was done.

It’s a legal version of the ends justify the means. Many of the liberals I know,(whom I believe are fairly typical of rank and file liberal voters, as opposed to activists), who wanted to see gay marriage made obligatory, who feel it is a civil rights issue something like that of race, would tend to applaud this ruling because they got exactly what they want. If one were point out to them the dangers of finding such a right in the Constitution where it does not exist, and promote the idea that the correct way to have done this was state by state (by referendum or legislature), many would be likely to meet that idea with shrugs of disinterest.

Does a similar attitude of ends justifying the means exist on the right? With some people, yes. But it has been my observation that it is far less prevalent on the right than left, and mostly limited to those who do not really adhere to a conservative philosophy. The different attitude is no accident. It is the right that tends to care about things like the process by which something gets done, and to consider that words should mean what they say and not be subject to elastic interpretations and penumbras, that the Constitution can change only through the time-honored method of amendments, and that one of the Constitution’s purposes is to limit the power and scope of the federal government.

My own attitude towards same-sex marriage is almost irrelevant to the discussion, but I’ll just quickly summarize it here by saying that I have no objection to and perhaps even a slight bias towards permitting same-sex marriage, but do not believe there’s a constitutionally guaranteed right to it and strongly believe the decision should be up to the states. So this SCOTUS ruling in Obergefell seems to me to be another example of the liberal Court majority doing a dangerous thing: working backwards from the result it wants, and twisting the Constitution in order to obtain that result. They are able to succeed in this because most people in America know very little about the Constitution and why it is so important, or what the dangers are of ignoring it.

Those on the activist left count on that, because it enables them to get away with what they do. First they prepare the ground in the educational system and the media — including entertainment — telling people that gay marriage is good and being against it is intolerance. Then they muscle it through the courts, if there are enough liberal judges and justices to oblige. They then increase the pressure on those (mostly religious people) who fail to get with the program, and brand them as hateful bigots. And then they attempt to invoke the law against those people’s right of non-participation.

And then they go on to the next thing, and the next.

Is there any way to counter these trends? I confess I’m not optimistic, but I believe that the educational system is key, including more knowledge of the Constitution and its role in protecting us from a tyrannical government.

And then there’s the next presidential election. Remember that the decision in Obergefell, and so very many others by SCOTUS, was accomplished because of a single vote (5-4), that of Justice Kennedy. It’s often Kennedy who makes the difference. Justice Kennedy is nearing his 79th birthday, Justice Ginsburg is 82 and not in the best of health, Justice Scalia is 79, and Justice Breyer is 77. The others are mostly in their 60s, with Justice Kagan the baby of the group at 55. That means that the next president, whoever he or she is, will probably get to appoint at least one and possibly several SCOTUS justices. If that next president is Hillary Clinton, the Court will be strongly and consistently liberal into the distant future. If that next president is a Republican, the Court could change to a strongly and consistently conservative one.

Yes, it’s true that the appointment of conservative justices has been a more iffy thing in terms of ideological consistency than the appointment of liberal judges. But there is no question that if a Democrat becomes president then you can kiss any idea of a conservative, or even a non-leftist, Court good-bye. If a Republican is elected, particularly a conservative, there is an excellent chance of at least a moderately conservative Court, and a decent chance of a conservative one.

Note that Justice Roberts, who has consistently voted with the liberals on Obamacare, did not do so here. Note also that Justice Kennedy is far more liberal than Justice Roberts; Kennedy is the deciding vote most of the time. So, who appointed Kennedy to the Supreme Court? Ronald Reagan, who also appointed Justice Scalia, an arch-conservative.

Why did Reagan choose Kennedy? After all, Reagan was not likely to have intended to support a justice who “evolved” in the way that Kennedy has. Justices are human beings and not entirely predictable, but the history of the Kennedy nomination involves two important things to remember: the first is that President Reagan was dealing with a Congress controlled by Democrats, and the second (closely related) is that Reagan’s first choice for the seat was Robert Bork.

You know what happened to Bork, a very staunch conservative, at the hands of that Democratic Congress — they gave his name to a new verb, “borked.” Reagan’s second nomination, Douglas Ginsburg (after Bork), had to drop out after it was revealed that he’d smoked marijuana (NPR’s Nina Totenberg was behind the campaign to discredit Ginsburg). Kennedy was finally nominated because it had become clear to Reagan that the Democrats who controlled Congress were not going to approve any truly conservative SCOTUS justice.

The moral of the story is that a Republican Congress is important, too, because Bork would not have been borked had Republicans been in charge; only a few of the Senate’s most RINO-esque RINOs voted against him. On the other hand (if it’s any consolation), Bork died two and a half years ago, during Obama’s presidency, so if Bork’s nomination had gone through it would have been Obama who appointed his successor. And I can virtually guarantee that that successor would have been way to Kennedy’s left, and not a “swing” justice at all.

It is easy to forget, in the anger at the defection of Justice Kennedy and the sometimes-defection of Justice Roberts to the liberal cause, that Justice Alito (who was Harriet Miers’ replacement after her nomination failed), Justice Scalia, and Justice Thomas have been the embodiment of conservative principles on the Court, and that they were appointed by Republican presidents. The Court matters, and appointments to it matter, but it is a game of numbers — a game that will become increasingly important in the election of 2016.