By Frank Scaturro
Monday, April 03, 2017
Today the Senate Judiciary Committee takes up President
Trump’s nomination of Neil Gorsuch to the U.S. Supreme Court. The full Senate
is expected to vote on the confirmation later this week.
Since Gorsuch’s nomination, Democratic senators have been
imposing the same litmus tests Hillary Clinton announced during last year’s
presidential campaign she would use for a Supreme Court justice. Yet no past
justice, including recent liberal icons, would pass these same litmus tests
Democrats have recently decided should apply to Supreme Court nominees.
“I have a bunch of litmus tests” for the Supreme Court,
Hillary Clinton admitted during a presidential debate. She proceeded to
emphasize overturning the court’s precedent in Citizens United v. Federal Election Commission and upholding the
decisions that declare abortion and same-sex marriage to be constitutional
rights.
In fact, she added regarding the latter issue, “We have
to go further to end discrimination against the LGBT community,” which, given
how much Obergefell v. Hodges already
transformed constitutional law, leaves room for little besides judicially
imposed sanctions against believers in the traditional definition of marriage.
The election may be over, but it is clear from numerous
Democratic senators’ statements during the Senate’s consideration of Gorsuch
that they retain these same litmus tests. This reflects a short-sighted vision
of acceptability for the Supreme Court.
Citizens United Was About Censorship
So much of the hype against the Supreme Court’s 5-4
decision in Citizens United ignores
what the court did: It struck down prohibitions on broadcast and similar
communications mentioning the name of a candidate within 60 days of a general
election or 30 days of a primary where the speakers funding the message were
organized as unions or corporations.
It amounted to a censorship law, punishable by
imprisonment, that particularly affected those of average means. (How
effectively can people who are not wealthy organize to engage in political
speech directed at a large audience without assuming a corporate form?) To have
decided the case otherwise would have allowed the government to punish
political speech, which is at the heart of the First Amendment, when it matters
most. Added to Clinton’s hubris in emphasizing the case as a litmus test, the
case concerned a video that criticized her.
Many critics of Citizens
United shoehorn their opposition into the narrative that the conservative
justices who gave the Supreme Court its 5-4 majority are the tools of
corporations. This does not withstand scrutiny when one considers the history
of the 1947 law banning independent expenditures by corporations and unions
that the Court struck down.
That law only passed over the veto of President Harry
Truman, who called the provision “a dangerous intrusion on free speech.” Five
Supreme Court justices writing soon afterwards would arrive at the same
conclusion as the Supreme Court would in Citizens
United that the act was unconstitutional: Hugo Black, William O. Douglas, Frank
Murphy, and Wiley Rutledge concurring separately in United States v. CIO (1948), and Chief Justice Earl Warren joining
Black and Douglas dissenting in United
States v. Automobile Workers (1957). They expressed themselves in separate
opinions where the majority did not directly reach the question of
constitutionality, but it is noteworthy that these were considered liberal
justices with no proclivity to favor corporations.
Roe v. Wade Is Controversial to Both
Sides
“Liberal” and “conservative” are imperfect labels subject
to change where the high court is concerned, and that is illustrated by the
longest-standing Democratic litmus test: upholding Roe v. Wade. Nothing about the Fourteenth Amendment’s text or
history in the century after its 1868 ratification suggested it dictated the
nationwide legalization of abortion, which had been established as a crime
under both common and statutory law and accepted as such by the giants of the
Supreme Court.
The latter category included Justice John Marshall Harlan,
the great dissenter from the “separate but equal” holding of Plessy v. Ferguson. It also included
Louis Brandeis—author of the landmark Olmstead
v. United States dissent asserting “the right to be let alone”—who along
with Oliver Wendell Holmes joined a unanimous decision upholding the revocation
of a doctor’s license for performing an abortion.
For that matter, even members of the Roe Supreme Court, including modern liberal champions William
Brennan and Thurgood Marshall, would fail still another litmus test: A mere
three months before announcing the abortion decision, the Supreme Court
summarily rejected the claim of a same-sex couple that the Constitution gave
them a right to marry, declining to take seriously the argument that would
become law in Obergefell.
All of this highlights a problem with the ever-changing
interpretation of the Constitution Senate Democrats promote: It imposes litmus
tests nearly every justice who is not currently serving would fail, from the
giants of the more distant past to recent liberal heroes. That’s not a
compelling standard for an institution whose rulings are supposed to stand the
test of time.
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