How many betrayals from Republican-nominated Supreme Court justices will it take to finally convince conservatives that the judicial deck is systemically stacked against us in such a way that we will simply never ultimately prevail?
Harry Blackmun, who authored the murderous atrocity of Roe v. Wade, was a Republican judicial nominee. John Paul Stevens, a leftist lion for decades on the Supreme Court, was a Republican judicial nominee. Anthony Kennedy, who did more than anyone to disingenuously codify the homosexual rights agenda into the Fourteenth Amendment, was a Republican judicial nominee. The infamous turncoat David Souter was a Republican judicial nominee.
Democrats, who nominate jurists based on the grotesque ruse of "living constitutionalism" and barely feign that their "jurisprudence" is inherently anything other than outcome-determinative, never miss with their Supreme Court nominees. In baseball terminology, their batting average is approximately 1.000. Republicans, at best, seem to bat .400.
In Moore v. Texas, released this morning, the Court summarily reversed the Texas Court of Criminal Appeals' determination that Mr. Moore "did not have intellectual disability and consequently was eligible for the death penalty." Summary reversal, as Ed Whelan notes at National Review's "Bench Memos" blog, is "ordinarily reserve[d]...for situations in which a lower court has clearly failed to abide by the Court’s precedents."
But that clear failure to abide by precedent plainly did not happen here. And the unsigned, per curiam opinion in Moore today itself suggests as much. The opinion merely states that the Texas court's decision below "rests upon analysis too much of which too closely resembles what we previously found improper." And, as Justice Alito's dissent notes, "each of the errors that the majority ascribes to the state court’s decision is traceable" to the Court's failure to provide a clear adjudicative rule in 2017, when Mr. Moore's case was last in front of the nine robed oracles.
So the Supeme Court never should have summarily reversed the Texas Court of Criminal Appeals. But it gets worse.
The Texas Court of Criminal Appeals' determination had followed a previous remand from the Supreme Court in 2017 — a remand order from which, crucially, Chief Justice Roberts dissented. But today, the chief justice concurred with the Court's liberal bloc in vacating the Texas Court of Criminal Appeals' determination that Mr. Moore is eligible for the death penalty. Put simply, the chief justice completely flipped his stance in the same case, from two years earlier, in order to side with the Court's liberals.
Chief Justice Roberts has once again shown his true colors — that of an "institutionalist" committed to preserving the purported "integrity" of the U.S. Supreme Court, as an institution, against those who would opportunistically excoriate it as being too political or partisan.
And yet it once again gets even worse. Because not only did the chief justice concur in the summary reversal (!) of the Texas Court of Criminal Appeals after registering his dissent only two years ago, but Justice Kavanaugh — who did not join Justice Alito's dissent today — appears to have also silently joined the summary reversal.
These are utterly indefensible votes from the chief justice and from Justice Kavanaugh. For the chief justice, that he would switch his posture from dissenting to concurring in the same case merely two years later speaks volumes about his (erroneous) fealty to stare decisis norms. As Whelan says, "today the Chief treats as governing precedent the Court’s 2017 decision in Moore, in which he wrote the dissent (for himself, Thomas, and Alito)." As for Kavanaugh, he similarly would be mistaken to treat the 2017 Moore remand order as persuasive — let alone correct or even "binding." Indeed, it is very difficult to see how Roberts and Kavanaugh could possibly agree to summary reversal today if they did not both view the 2017 Moore remand — from which, again, Roberts dissented (!) — as something closely approximating "binding" precedent.
It seems clear that the chief justice and Justice Kavanaugh are already duking it out to see who can better anoint himself the "new Anthony Kennedy." I do hope they enjoy themselves. But what is not particularly enjoyable is to watch the legal conservative movement beclown itself time and time again by nominating — and placing institutional and political capital behind — judges who more often than not deeply disappoint conservatives.
In November 1996, the late Robert Bork penned the following at First Things:
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
Sadly, 23 years later, our crisis is even worse. We will never, ever win the "long game" of judicial nomination wars with the Left.
What we can do, however, is work to end sycophantic judge-worship and self-destructive judicial supremacism in America.