The Federalist Society, scourge of the “living Constitution” and defender of liberty, provided in 2016 a list of 25 candidates it preferred as nominees for the Supreme Court. Whereupon candidate Trump announced, with a lot of fanfare and a little wiggle room, that he would select nominees from that list were he to be elected. His first nominee, Neil Gorsuch, was on that list and he now sits on the high court.
Now that Justice Kennedy has announced his resignationTrump has another nomination to make. Reportedly his top 5 potential choices are all from the same list. At the top of the list is Brett Kavanaugh, who has a 47% chance of being selected according to Predict It, a political futures market. That the Federalist list dominates the selection process is cause for relief, and not just because the jurists on the list are first rate. It is also clear that the President, left to his own devices, lacks the capacity to make an informed selection.
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To the surprise of no one, the Senate vote counting has begun and progressives are already howling. They appear to be afraid of three things. First, that Roe v. Wade may be overturned (it should be). Second, that the Court will continue along its present path of defending the First Amendment, which is under relentless attack by progressives. Third, that the Court will begin to rein in the Administrative State by eliminating the judicial doctrine of Chevron deference when adjudicating disputes over the interpretation of regulations.
Let us take a brief look at each of these policy areas.
Roe v. Wade
In the matter of Roe, it is almost universally understood that the case was wrongly decided. The Court basically decided that women ought to have a right to abortion and set about creating that right out of whole cloth. In so doing it dispensed with democratic processes, imposed an abortion rights regime on the entire nation by judicial fiat and set the stage for the culture wars of the last 5 decades. The United States now has the most radically permissive abortion regime in the West.
Note too that Roe was based on the idea of a right to privacy, which was first discovered in Griswold v Connecticut. In that case the Court voted 7 -2 that Connecticut’s Comstock law violated the “right to marital privacy”. That’s right: marital privacy. By 1972 in Eisenstadt v. Baird, the Court extended the right to unmarried couples. In 1973, Justice Potter Stewart cited Griswold and Eisenstadt in support of Roe. By 1992, in Planned Parenthood v. Casey, the Court found a liberty right to abortion under the 14th amendment, holding that states could not regulate abortion if it created an “undue burden”. Using this test, the court invalidated the requirement of spousal notification.
All along the way, the Court continued to shift the decision criteria until we arrived at where we are today, which is abortion on demand at any time. Note too that while Griswold began with the right to marital privacy, the Court wound up invalidating a requirement of spousal notification of the intent to procure an abortion. Moreover the ever changing rights granted in the abortion regime are rights created by government, unlike the rights in the founding documents which are based on natural law, not positive law.
And therein lies the rub. In the progressive universe, positive rights are created and dispensed by government. There is nothing sacrosanct about them. They are rooted in fashion, not philosophy. Which leads us to the First Amendment, now under assault.
The First Amendment
The assault on the First Amendment is most visible in the Universities where speakers who espouse unpopular points of view are shouted down, ostracized and sometimes assaulted for expressing (or attempting to express) those points of view. And it extends to Trump, who has encouraged the use of violence to silence his critics. So what is the genesis of all this?
A good way to get a read on it is to refer to an article published by the New York Times on Saturday, June 30, 2018, titled “How Conservatives Weaponized the First Amendment”. A link to the article is here.
The intemperate language of “weaponization” comes from none other than Justice Kagan in her recent dissent in Janus v. AFSCME. In her dissenting opinion she referred to her colleagues as “black-robed rulers overriding citizens’ choices”. It is difficult to ignore the irony of Kagen’s reference to “citizens’ choices” when, on First Amendment grounds, the Court held that public sector union members could not be compelled to financially support policies with which they disagreed. But, Kagan said, “the First Amendment was meant for better things.”
Perhaps unwittingly, Justice Kagan revealed her preference for conferring command and control powers on an unfettered bureaucracy when she went on to say that the Court’s majority “…Weaponiz[ed] the First Amendment in a way that unleashes judges, now and in the future to intervene in economic and regulatory policy.” Well, judges have been intervening in economic and regulatory policies for at least a century. But more importantly, Kagan reveals an instrumental view of the First Amendment. She is perfectly willing to abandon free speech and free association (which includes the right not to associate) in support of compelled speech as long as doing so leads to her preferred outcome.
On the progressive left, this is now becoming a fashionable way of thinking. Consider this remark byProfessor Lewis Michael Seidman as reported by the Times in the above referenced article.
“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
Again we have the instrumental view. Free speech is just swell as long as it produces a “more just society”. The obvious question is: who will be the arbiter of what constitutes a “more just society”? And who will decide what speech advances the cause? How will the speech police punish malefactors? And how, exactly, does that protect minority rights? And not to make too fine a point of it, according to the founding documents of the U.S., speech rights inhere to the individual having been endowed by the Creator. There is a reason why the First Amendment is the first amendment. The government’s responsibility is to secure those rights, not pick and choose who exercises them.
Which leads us to the doctrine of Chevron deference.
Chevron deference essentially says that agencies, not the courts, are the primary interpreters of the meaning of statutes administered by agencies. Chevron deference requires the courts to accept an agency’s disputed reading of a statute, even if that reading differs from what the court believes to be the proper reading. The theory is that agencies—not the courts—have the necessary expertise to do so across the federal bureaucracy. Moreover, it is argued, by leaving this responsibility with professionals in the bureaucracy the Chevron doctrine reduces partisan political behavior by judges.
In a paper published by the Federalist, Christopher J. Walker finds some evidence that suggests this last point may be correct. (Here is a link to the article). By restraining judicial discretion, Chevron may have reduced partisan political behavior by judges. Then again, it may have succeeded in simply relocating that partisan behavior to the bureaucracy. That aside, Chevron undoubtedly transferred significant power to the bureaucracy at the expense of the Congress. And it also increased Presidential regulatory power at the expense of the Congress—witness both the Obama and Trump administration’s reliance on governance by executive order.
The maintenance of a vast bureaucracy (with some agencies having police power) that acts at the order of the President is the essence of a command and control framework that is central planning in everything but name. Not only are the individual agencies vulnerable to capture; the system invites corruption in part because it lacks meaningful oversight and accountability. The agencies themselves are easily co-opted by partisans to be used as means to partisan ends; not only that—sometimes the staffing at an agency makes it a de facto lobbying group for outside interests. These are not easily correctable flaws; they are baked into the architecture of the Administrative State.
This is simply untenable; the Administrative State has to be cut down to size. One way to do that is to substantially weaken (if not eliminate) Chevron deference as judicial doctrine. The likely result would be a more accountable (or less unaccountable) federal bureaucracy; a reduction in executive power, and an increase in legislative power and accountability. All to the good.
In short, cases in three important issue areas are almost certainly going to come before the court before too long. One will be a challenge to the constitutionality of Roe v Wade. Another will include cases likely to challenge First Amendment rights respecting freedom of speech, freedom of association and the practice of religion. A third will call into question the Chevron doctrine and the relative power of the bureaucracy vis-a-vis the elected branches and the Judiciary. A strict constitutionalist would find that Roe was wrongfully decided; that the First Amendment means what it says, and that the United States is a Republic in which laws are written by duly elected legislators, not the bureaucracy. Finally, a strict constitutionalist would be one who understands that the government is charged with securing the rights specified in the Declaration of Independence, using powers granted by the Constitution, and only those powers.
A constitutionalist approach to these issues is a dagger pointed at command and control—the beating heart of modern progressivism. We shall soon see if Trump appoints a constitutionalist and what measures the left will take to torpedo such a nomination, if it occurs.
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