Article by Andrea Widburg in The American Thinker
‘The Hill’ inadvertently explains why the left fears Amy Coney Barrett
Since November 9, 2016, the day after Trump was elected, the leftists who now make up the American Democrat party have been in a non-stop tizzy. They have proven incapable of accepting that they lost at the ballot box and have used every underhanded and lunatic tactic available to evict Trump from the White House. For many of these initiatives, they’ve had the Supreme Court helping them out. That will end when Amy Coney Barrett joins the Court. Her presence creates a conservative majority that will be an insurmountable barrier to leftists’ more overreaching demands
I already wrote about Vox’s Ezra Klein saying that leftists need to do away with the filibuster to get any legislation passed. That is an open admission that slightly less than half the country does not approve of what the hard-left Democrat party wants to do. Passing legislation that almost half the country deeply opposes is a recipe for disaster. That's why we have a filibuster, for it gets a majority of the country – through their representatives – on board with big (and even little) changes.
Now The Hill, which is ostensibly a more centrist publication than Vox (it isn’t really, but that’s its reputation), is admitting that, if Biden wins, and the Democrats take the Senate, Amy Coney Barrett is a problem:
The Supreme Court is looming as a roadblock for Democrats as they plot an ambitious wish list if they gain control of the White House and Congress for the first time in a decade.
Judge Amy Coney Barrett’s ascension to the Supreme Court, which Republicans hope to finalize this month, would lock in a conservative majority likely for decades, setting the courts up as a potential foil for Democratic presidential nominee Joe Biden’s agenda and Democratic leadership in the House and Senate.
The result of a 6-3 court, Democrats warn, could lead to the justices striking down a host of top priorities for the party, including health care, voting rights legislation or enacting stricter background checks for gun purchases.
In other words, Democrats understand that their initiatives are almost uniformly unconstitutional. However, since the 1950s, a primarily activist Supreme Court has given these unconstitutional laws a pass. With Barrett on board, though, the Court finally will serve (as it has long been meant to) as a roadblock to ideas that don’t comport with the Constitution.
In 1819, in McCulloch v. Maryland, Chief Justice John Marshall established the principle that the Supreme Court would determine whether challenged laws comported with the constitution. If they did, they could stand; if they did not, the court would strike them down.
Under the Marshall metric, the Supreme Court does not exist to make laws. Its primary purpose is to determine whether laws pass constitutional muster. This is sensible because Congress, which holds the people’s elected representatives, exists to make the laws.
Beginning with 1954's Brown v. Board of Education, the case that ended school segregation, the Court began to create principles that do not exist in the Constitution to uphold laws advancing principles it liked and strike down laws with principles it did not favor. The only way to do this was to say that the Constitution is a “living document” that can be read in whichever way the activist justices want.
Thus, a strict constructionist court does not assert its conservative ideas. This distinguishes it from the activist court of the last seventy years. Put another way, strict constructionist and activist judges are not mirror images of each other, with each using the bench to advance different political ideologies. The strict constructionists hew to a theory that goes back 200 years; the activists hark back to the mid-1950s.
The most egregious example of the activist philosophy is Roe v. Wade, which used emanations and penumbras to find a magical constitutional right to abortion. There were, in fact, two correct legal choices, the judges didn’t like either.
One choice was to say that the Constitution does not address abortion, making it a matter for the individual states under the Tenth Amendment. The other was to say that the Fifth Amendment establishes that the government cannot deprive people of life without due process of law. At some arguable point in an unborn baby’s development (ranging from conception to viability), abortion violates the baby’s right to life. The activist court, however, opted to wing it.
Having seen what the activist court did with abortion, conservatives have long feared what an activist Court could do to the Second Amendment. Barrett’s presence on the Court, though, puts the brakes on an activist Court’s efforts to dance around that explicit right.
The sum of the above information is that, even if the Democrats do away with the filibuster and pass laws with a bare majority, their laws cannot stand up to constitutional scrutiny. The strict constructionist Court won’t try to re-write the laws to make them work, or find imaginary rights where none exist. Instead, like Roman emperors asked to decide the fate of a gladiator in the Colosseum, the justices will give the “thumbs up” or “thumbs down” to the laws, based not on their personal moral views, but on the Constitution’s objective standard.
