Judicial Activism Set the Stage for Trump Win
Just three years later, the Court saved ObamaCare again by overriding the plain meaning of the statutory text, and concluding that provisions explicitly limited to "state" exchanges applied to federal exchanges as well.
One day later, in an exercise of unbridled judicial activism rivaled only by the likes of Roe and Dred Scott, the Court invented a constitutional right to same-sex marriage.
The emotional impact of the gay marriage ruling and the ObamaCare decisions extended far beyond the world of lawyers and political activists. It permeated the public consciousness more deeply than many of the Court's other high-profile decisions involving somewhat arcane matters, such as the rights of enemy combatants, independent campaign expenditures, preclearance under the Voting Rights Act, and workplace discrimination claims. Millions of ordinary Americans cheered the three decisions, while millions of others -- including many who would later vote for Trump -- decried the Court's naked activism.
At the deepest level, the realignment of blue-collar voters that enabled Trump's victory was engendered by their resentment of an elite class that looks down upon those who do not share its values. The gay marriage decision in particular reinforced that resentment, when the Supreme Court declared that the traditional definition of marriage -- a definition favored by half of the nation, but few of the elite -- was irrational bigotry.
With this presidential election coming on the heels of last year's back-to-back ObamaCare and marriage decisions, the stage was set for the Supreme Court issue to play an outsized role in the election's outcome.
Reminding voters that they are living under the rule of judges rather the rule of law motivated them to go to the polls, so they could have a say over which judges will rule them. Scalia's death only heightened the stakes, and the success of the Senate's just-say-no response to filling the resulting vacancy confirmed the depth of feeling about an activist Court among center-right voters.
Donald Trump's anti-establishment campaign was perfectly timed and perfectly aligned with the center-right's conviction that the elite were using judicial activism to impose their values on the average American.
Judicial activism may seem like a free lunch to liberals, providing leftward progress without a need to compromise with the folks in flyover country. However, progressives paid a price for that lunch at the polls this month.
Perhaps that price will open their eyes about the electoral perils of a politicized Court and dampen their enthusiasm for judicial activism. But I'm not holding my breath.
Curt Levey (@Curt_Levey), a constitutional law attorney with FreedomWorks and the Committee for Justice, has been involved in several Supreme Court confirmation battles.