National
Review Online
Monday, May
08, 2023
From the
New Deal to well past the Reagan era, progressives serenely regarded the United
States Supreme Court, and thus the third branch of government overall, as being
securely in their hands. The pieties they mouthed during this period — about
the sacredness of Marbury v. Madison and the importance of
judicial independence to a vital republic — had the distinct virtue of being
true.
But this
language was equally a means to a rhetorical end during an era when the rulings
of the Court’s liberal majority securely tended towards the expansion and
centralization of federal government power or the passage of nationwide social
legislation via judicial fiat, as in Roe v. Wade. The Court’s
legitimacy was not to be questioned because the Court was accomplishing
progressive goals in sweeping fashion and often with minimal theoretical
attachment to inconvenient constitutional text or history.
Once
progressives began, during Ronald Reagan’s second term, to realize they might
one day lose this all-important preeminence, their attitude toward the Court
began to shift. Their initial tactic was pitiless defense: The politicization
of Supreme Court confirmation battles is an ongoing chapter in our national
politics that began with the infamous 1987 Robert Bork confirmation hearings,
in which Ted Kennedy demagogued one of America’s most conscientious legal
scholars into a cartoonish demon for no other reason than that Roe v.
Wade was thought to be on the line. (He was not wrong: The replacement
nominee for Bork was none other than Anthony Kennedy, who soon joined the
incoherent Planned Parenthood v. Casey decision
reaffirming Roe.)
This
continues to the present day. Democratic Supreme Court nominees inevitably sail
through confirmation with minimum procedural fuss and the required political
theatrics; Republican nominees receive invasive exams from the media and get
accused of everything from sexual harassment (Thomas) to gang rape (Kavanaugh)
to Catholicism (Barrett).
But now
that Dobbs has shown not only that the Supreme Court has been
definitively lost to progressives for the immediate future but also that the
justices cannot be intimidated out of their constitutional principles,
progressives have shifted to offense. It is a deeply ominous development for
the country. The apocalyptic tone of left-wing commentary since the Court
overturned Roe has now evolved into a smear campaign against
the integrity of the originalist wing of the Court, a rash of stories all
curiously appearing in serial rollout suggesting financial compromise or
corruption on the part of Justices Gorsuch, Roberts, and Thomas. That the
claims are spurious when not outright farcical is beside the point; the point
is to throw enough dust into the air to trigger a “where there’s smoke there
must be fire” instinct in low-information voters.
Justice
Neil Gorsuch is indicted for selling
his Colorado house for
well below the asking price to a stranger who also happened to be the head of
litigation firm Greenberg Traurig. Chief Justice John Roberts is apparently
guilty of having a wife who has a career. (Jane Roberts actually gave up her
extremely profitable litigation practice when her husband became Chief Justice
for prudential reasons — Ruth Bader Ginsburg’s husband felt no such pressure to
do so — and instead moved into recruiting and placement.)
Which
brings us to the matter of Justice Clarence Thomas, a man who has long been
told by his critics to “get Virginia Thomas under control.” Attacks on Thomas’s
wife (a well-known conservative activist) are nothing new in the world of
Supreme Court politics; the new charges are against Thomas himself: Thomas is
accused of having a wealthy friend — Harlan Crow, a conservative donor and
philanthropist — who spent generously on joint vacations and other acts of
family charity. This is a quid in desperate search of a quo;
Crow has never had any business before the Court. An exhaustive media treasure
hunt for a Crow-related case turned up only a case the Court declined to take
involving a company so distantly related to Crow that the federal rules did not
require the filings to disclose any connection. Furthermore, Crow’s acquaintance
with Thomas came long after Thomas had become a well-known originalist stalwart
there. They are friends because they share similar political views, and
because, one imagines, they enjoy each other’s company. (Disclosure: National
Review Institute has sponsored events at Crow’s home, and he has donated to
NRI.)
Thomas’s
manifest contempt for his critics is its own kind of provocation, but this
doesn’t appear to be a spate of random stories; rather, a centrally coordinated
campaign timed in anticipation of upcoming rulings on affirmative action in
college admissions and student-loan relief. And yet the authors of this
campaign have long-range goals, not just short-term ones.
The
originalist Court isn’t going anywhere for the time being, nor will it be moved
by political intimidation. Democrats lack the votes to pack the Court or remove
any of the justices. The authors of this media push have priced this in. This
is the opening move in a longer war against the legitimacy of the Supreme Court
as a whole. Activists have concluded that since they lack ideological control
over the Court in the short term, it must be delegitimized in anticipation of
an attempt to unilaterally expand it or otherwise neuter it when Democrats next
gain significant majorities in both houses of Congress during a Democratic
administration.
Even
were they to regain unified control of Congress and the White House,
progressives see the Supreme Court as the last remaining obstacle to an
unchecked wish list of Democratic policy dreams. As a result, they are seeding
the ground for a future political revolution: the destruction of the
independent American judiciary.
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