The blunt reality is that unless and until President Donald Trump openly defies a lawless court order — ideally one that takes the form of an unconstitutional “nationwide injunction” — and thus strikes a grievous, Lincoln-esque blow against the constitutionally fallacious soft tyranny of judicial supremacy, nothing else that happens in our politics will ever matter.
Nothing.
The U.S. Supreme Court term that came to a close last month was a very rough one for conservatives. The sad truth is that aside from partisan gerrymandering and (possibly) the Fifth Amendment’s Takings Clause, there was nothing that happened this Supreme Court term that resulted in not merely a positive litigation outcome, but also a meaningful doctrinal shift in an underlying substantive area of constitutional law.
But the even sadder truth is that, ever since the originalist intellectual project began in earnest in the early 1980s with the advent of the Federalist Society and the Reagan-era nomination of Antonin Scalia to the Court, the originalist project has been generally failing. There have undoubtedly been doctrinal victories — 1995’s U.S. v. Lopez on the Commerce Clause, 2008’s D.C. v. Heller on the Second Amendment, and 2010’s Citizens United v. F.E.C. on the First Amendment all come to mind — but those victories have been more than overwhelmed by doctrinal losses and the generally lethargic and balkanized nature of the broader originalist project.
“Living constitutionalism,” the faux-intellectual ruse by which leftists claim a centuries-old piece of parchment mysteriously contains new “rights” embedded in invisible ink and detectable only to the closely scrutinizing leftist eye, is inherently outcome-oriented. Once you detach a codified legal text — be it a constitution, statute, or treaty — from a fixed and discernible meaning, there is simply no exegetical mechanism by which black-robed oracles can be constrained from imposing their policy preferences upon the public via the facile veneer of “giving the text new meaning.” It is difficult to conclude, therefore, that the entire “living constitutionalist” enterprise is anything other than utterly disingenuous.
Because “living constitutionalism” is a faux-intellectual ruse that is inherently outcome-oriented in favor of the idiosyncratic caprices of the Left, the liberal bloc on the Court tends to vote in unison on all jurisprudentially, politically, and culturally salient cases on the docket. Put another way, the Left has arrived at a place where it can hit a home run every time it enters the Supreme Court judicial nominations fray without so much as batting an eyelash.
To put it mildly, the reverse is not true for the Right and for constitutional originalists. Not only do self-proclaimed originalists frequently disagree among themselves as to the original public meaning of constitutional provisions, but the Republican Party has also proven woefully inept at actually nominating legitimate originalists to the Court. As I wrote in February:
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.
Alas, Chief Justice John Roberts was a Republican judicial nominee. And — take some deep breaths, judicial supremacists — Justice Brett Kavanaugh was a Republican judicial nominee.
The solution for conservatives ought to be clear. To be sure, keep on doing our best to nominate sound judges — a good judge is here, there, and everywhere better than a bad judge. But stop subscribing to the judicial supremacist paradigm — the fallacious, anti-constitutional doctrine wherein the ad hoc judgments promulgated by the “least dangerous” branch bind the other two branches as to broader political dilemmas — and stand with the legacy of Abraham Lincoln, the republic’s greatest statesman. Consider Abraham Lincoln’s magisterial First Inaugural Address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
That is the true constitutionalist legacy. Unless and until President Trump and the rest of the Republican Party seize the moment and openly push back against judicial tyranny, nothing else truly matters. Leftists and open-borders zealots will continually defy Supreme Court rulings and take new bites at the apple at sundry lower courts across the country, waiting for one lawless black-robed tyrant who will inflict a “nationwide injunction” on the yokels and plebeians across the heartland. Conservative lower court judges, by contrast, normally feel “bound” by the Court and do no such thing. No matter what President Trump or congressional Republicans do, the courts will find a way to stop it if they are so inclined. They always have, and they always will.
This is not a game we can win. The deck is systemically stacked against conservatives and originalists. And nothing else matters until we rectify the problem.
At what point will conservatives stop playing this doomed game and stand up, once and for all, to reject judicial supremacy?