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Conservatives obsession with the Supreme Court is dangerous


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Let me get one thing out of the way right now, I will be deleting any hint of whataboutism.  Let's just acknowledge up front (as the article does) that liberals do and have done this also.  The end.  Now move on because that's not what this article is about.


The Supreme Court Is a Dangerous Conservative Obsession

Late last week Alabama governor Kay Ivey said out loud what I’ve been hearing from friends and acquaintances across the conservative movement. Even if Roy Moore’s accusers are telling the truth, they’ll vote for Moore. Why? The Supreme Court. Here’s Governor Ivey:

I believe in the Republican party, what we stand for, and most important, we need to have a Republican in the United States Senate to vote on things like Supreme Court justices, other appointments the Senate has to confirm, and make major decisions

She made this statement even though she also said that she had no reason not to believe Moore’s accusers. She would put a man who abused children in the Senate because his votes on court appointees are that important.

This is not a fringe view. It’s held with fierce conviction across Red America, and it was one of the prime reasons millions of people cast votes for Donald Trump even when they believed all or some of the more than dozen sexual misconduct complaints against him. To put it plainly, millions of American voters will willingly put in high office a man they wouldn’t hire to serve as an accountant in their local insurance agency — all because of the Supreme Court.

How did we get here?

One is tempted to offer a short answer to the question, to cite Roe v. Wade and just be done with it. But the reasons are actually deeper, more complicated, and more intractable than one might think. It’s a tale of judicial supremacy and leftist overreach, yes, but it’s also a tale of a movement that too often forgets that politics and culture still can and do trump courts and cases.  

But let’s start with judicial supremacy. Any decent conservative lawyer can cite chapter and verse on case after case where the Supreme Court departed from conventional rules of constitutional interpretation to not just discover a right to abortion in the Constitution but also to specifically and repeatedly target Christian expression in the public square.

Roe is of course the most egregious example. The case itself was so poorly reasoned and written that even liberal scholars expressed reservations. Harvard Law School’s Laurence Tribe said, “Behind [Roe’s] own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Even Ruth Bader Ginsburg expressed concerns, calling Roe an example of “heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict.”

But it’s not just Roe. In Planned Parenthood v. Casey, the court decision that reaffirmed Roe, Justices O’Connor, Kennedy, and Souter (all GOP appointees, but we’ll get to that) articulated a view of liberty that’s nowhere in the Constitution, actively conflicts with orthodox Christian theology, and would surprise many of the Founders. The justices declared that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

As a philosophical statement, this now famous “mystery of life” passage is incoherent. As a constitutional philosophy, it’s indefensible. It’s sappy nonsense, and so is the Court’s ruling in Obergefell v. Hodges, a case that actually includes this line: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” On a Hallmark card, that’s sweet. As a statement of constitutional reasoning, it’s ridiculous.

I could go on. This type of fuzzy reasoning has often been deployed in cases that depart from originalism or textualism to directly target public expressions of Christianity. To rid this nation of school prayer and things like public displays of the Ten Commandments — or to drain public memorials of religious content — the Court invented entirely new standing rules that grant anti-religious litigants special status in federal courts.

And the threats continue. The Court will soon hear cases that will determine whether a state can actually compel pro-life citizens to advertise for free abortions and whether a state can compel a Christian baker to design a cake to celebrate an event he finds offensive. The barriers against compelled speech are among our most sacred constitutional doctrines. Now they may fall in the face of a relentless sexual revolution.

In short, the Court has often diminished individual liberties that are unmistakably and plainly in the Constitution for the sake of protecting rights it concocted out of thin air, such as the right to an abortion or the right to gay marriage. Is it any wonder that conservatives are alarmed?

Moreover, that alarm is only magnified by decades of bad judicial choices. Conservative activists have labored since Roe to put originalist majorities on the Court, yet while Democratic presidents appoint faithful liberals, Republican presidents often swing and miss. For every Scalia and Thomas there’s an O’Connor and Souter. For every Alito, there’s a Kennedy, the swing vote of the sexual revolution. So now the priority isn’t just electing a Republican. He has to prove he’ll be just as committed to making good judicial nominations as the average Democrat.

That’s why Donald Trump was smart to release his list of proposed Supreme Court nominees. Though many things could have swung the election, given the closeness of the race, I’m confident about this: no list, no President Trump.

Having just described why it’s entirely right to be alarmed by judicial supremacy and why conservatives are right to be angry, it’s time to shift gears — to describe how the conservative reaction has sometimes morphed into a self-defeating overreaction, one that will do damage to the very causes conservatives, especially Christian conservatives, seek to advance.  

Proper constitutional doctrine is vital. The Supreme Court cannot act as a black-robed legislature, dispensing social justice as it sees fit. But proper constitutional doctrine rarely dictates specific cultural or political outcomes. Let’s take abortion, for example. The goal of the pro-life movement isn’t to restore originalist jurisprudence but rather to protect human life from conception to natural death.

Many Americans believe that reversing Roe would ban abortion. This is wrong. The Court could vote to overturn Roe, and abortion would still be legal across the length and breadth of the United States. After all, overturning Roe would return the abortion question to the political process, where different states would enact different laws. For example, only four states have passed post-Roe statutes indicating that they’d ban abortion if Roe is overturned. (A number of other states have pre-Roe abortion bans, but several are in blue states that would immediately protect abortion rights in the event of an adverse SCOTUS ruling.)

Thus, the fight for life transcends Roe. Decisive cultural change can diminish abortion dramatically even if Roe remains intact. At the same time, cultural permissiveness can enshrine abortion not just as a legal right but a noble act (remember “shout your abortion?”) independent of any court ruling. Given this reality, “child-abusing senators against Roe” strikes me as perhaps the worst possible message to a culture in desperate need of persuasion.

In fact, the political process can protect individual liberty even when the Supreme Court fails. Think of gun rights. Cultural and political change meant the loosening of gun laws across the United States before the Court’s landmark decision in District of Columbia v. Heller recognizing the obvious truth that the Second Amendment protects an individual right to keep and bear arms. And while Heller is important, overturning the case wouldn’t change a single state or federal law protecting gun rights — including the many laws that go far beyond Heller in protecting the right to self-defense.

The list of political remedies for the worst judicial decisions goes on and on. Statutes and regulations can protect religious liberty and free speech. State constitutions can play a vital role. Protest and activism can render illiberal changes too costly even for hostile lawmakers. Conservatives too often act as if a Supreme Court decision is the end of an argument. In truth, it’s often just the beginning.

Let’s take an issue near and dear to my heart — freedom of association. In 2010 the Supreme Court reached one of the most dreadful First Amendment decisions of the last 20 years. In a case called Christian Legal Society v. Martinez, it determined that — under certain circumstances — a public university can actually force Christian campus organizations to open themselves up to non-Christian, even atheist leadership. Freedom of association is a dead letter if you can’t even require your leaders to support and uphold the mission, values, and beliefs of an organization. Many of us feared that religious student groups teetered on the brink of a campus crisis.

Yet far from heralding disaster for religious freedom on campus, the decision barely rippled the waters. It turns out that not even deep-blue universities in deep-blue states have been able to sustain meaningful, active opposition to freedom of association. Christian student groups didn’t give up. They made arguments in the court of public opinion. They appealed to legislatures. They had dialogues with administrators. And they almost always won. Christian ministries are vibrant, active, and actually growing on college campuses from coast to coast.

Here’s the problem: Politics and activism take long, hard work. They require patience, persistence, and persuasion. But, ultimately, that process often results not just in political change but also in enduring cultural transformations. Given the constitutional atrocity of Roe, it’s easy to forget that it was connected to a potent cultural and political movement — one that still sways the hearts of tens of millions of Americans. The laughable reasoning of Obergefell shouldn’t distract from the fact that the argument for gay marriage had gained astounding cultural force in a remarkably short period of time.

Conservatives who want to protect life and preserve liberty must do much, much more than select the right judges, and they can’t sacrifice the larger cultural argument for the sake of any single nomination or series of nominations. “Sexual harassers for the Second Amendment” isn’t a compelling cultural message. If you make vile people your champions, you can’t be surprised if Americans begin to associate the cause with its advocates. 

The pro-life movement is among the most successful cultural and religious movements of the last 50 years. In the face of unified opposition from the key elite institutions in the United States — the academy, pop culture, and the courts — it has not only survived, it has thrived. By some measures, the current generation is more pro-life than their parents, and the number of abortions has declined even as the American population has grown, saving millions of lives.

It didn’t make this headway by wrapping its arms around credibly accused sexual predators. Its leaders and volunteers understood that regardless of the state of the law, they could save lives. And so they set about doing just that. Through their grace, their patience, and — most significantly — their love for women and children, they are helping change this nation. Any “ambassador” who is inconsistent with that ethos is a risk. An angry, defiant, and dishonest credibly accused child abuser is a disaster, a walking commercial for the other side. His one vote out of 100 simply isn’t worth the cost.

— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.


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In the same vein, a though provoker from yesterday:


Since publishing a column a couple of weeks ago about the ways I believe the church is misfiring in its attempt to shape the culture through political engagement, I’ve received lots of feedback, the vast majority of which has been positive. You never really know how many principled people exist quietly in your midst until one of you says out loud what all of you are thinking. It’s been encouraging.

The prevailing theme among the negative feedback, however, came from fellow Christians who see my resistance to voting for morally compromised candidates as a lack of commitment to the sanctity of life. Many take a pragmatic approach like Alabama Gov. Kay Ivey, saying they have no reason to disbelieve the allegations against Roy Moore but feel compelled to grit their teeth and press on because of Moore’s stated position on abortion, contrasted against those of pro-choice candidate Doug Jones.

I, too, lack any reason to disbelieve these women or their heavily scrutinized and still un-refuted stories. So consider this column a conversation among those of us who can agree on this premise. If nine accusers and dozens of corroborating witnesses doesn’t give you pause, I can’t help you.


I’m also not going to preen about the pro-life organization I volunteer with every week, where I mentor and serve abortion-vulnerable women. I won’t bore you with stories about the Christian nonprofit I’ve served for years that helps families rescue waiting children from foster care or orphanages. But suffice it to say I’m at peace with my pro-life credentials, which extend far beyond a voting booth. However, this pragmatism conversation is one worth having. So let’s have it in a parlance we all understand in Alabama -- football.

For pro-life Christians in Alabama, this situation is tantamount to being 4th-and-2 on the 50-yard line. Whether you go for it or not depends on several things: the balance of your offensive game plan; what you think of your defense; and time on the clock.

If the sum total of our game plan to fix the abortion problem in this country rests in the congress and the courts, but doesn’t speak to reducing demand for abortion by meeting the needs of women and children in crisis, it’s woefully lazy and one-dimensional. And of course such a plan would cause many to feel an incredible amount of pressure to gamble on a risky play and a gimpy player to move the chains—because politics is all they’ve got. If your vote is the whole of your efforts, you simply can’t afford the luxury of a complicated election cycle. That’s a garbage game plan—and nobody’s fault but ours.

Then there’s the question of what we think of our defense. If we punt by refusing to vote for a candidate who makes us cringe either by staying home or writing in a more credible candidate, effectively giving the ball to a Democrat, can we depend on our defense to shut him down and make him go three-and-out? (Literally three. Three years.) Can the Alabama GOP get its act together enough to put forward a credible candidate for 2020 and take the seat back in one of the reddest states in the union? If not, our defense is a joke. Maybe that’s something worth looking at in the off season.

Now let’s consider the ramifications of going for it. It could look one of two ways. Let’s say you decide to put your nausea aside for the moment, and scratch and claw to get Moore elected in two yards and a cloud of dust. You’ll save one seat for the GOP in the Senate, but how many congressional seats will you lose in more moderate states in 2018 when the stink of Moore’s garbage (coupled with the president’s abysmal approval ratings) won’t go away? The optics of this political dumpster fire are so bad, it could cost the GOP a greater number of races in swing states in a matter of months. Did anyone even pay attention to what went down in Virginia last month? Or maybe you sell out for Moore and don’t get the first down. In that case you’ve set fire to your integrity for nothing at all. You just wake up feeling dirty with horrible field position.

And then there’s the matter of the clock. How much time do we have to get this right? Do we have time to take a deep breath and wait for the next series? From a purely utilitarian viewpoint, yes we do. Some are acting as if electing Roy Moore will magically cause the court to reconsider Roe v. Wade and abortion law will change overnight. We’re acting as if it’s a sure thing that the Senate will confirm another justice for the SCOTUS within the next three years. The former is most assuredly untrue, and we just don’t know on the latter.

So if we’re going to be purely pragmatic about this, pro-life friends, don’t kid yourself about where you are on the field and what you stand to lose, even if you get this man past the sticks on Dec. 12. There’s a lot of time left on the clock.

Be smart. Punt the dang ball, pro-life Alabama.

Dana Hall McCain writes and speaks about faith and culture. To get her thoughts on current events (plus a little Auburn football), follow her on Twitter at @dhmccain.

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