On Wednesday, Justice Anthony Kennedy, the longtime swing vote on the Supreme Court, announced that he would retire from his seat. Democrats and Leftists in the media went apoplectic; the wailing and gnashing of teeth could be heard from space.
Former Obama officials merely tweeted out their four-letter reactions; audio from conference calls of Democrats featured open cries of anguish; late night comedians dropped the comedy utterly and instead mourned the possibility that for the first time in generations, textualists might represent the majority on the court.
Why would this be a big deal? Only because the Left has spent generations politicizing the court, turning into an oligarchic avatar of its own political priorities.
In Federalist #78, Alexander Hamilton spelled out the role of the federal judiciary: to implement the strict words of the Constitution. Its job was not to act as a moral arbiter; its job was not to act as a super-legislature, capable of checking the political excesses of the other branches. Its job was the same as any court’s job would be in a bankruptcy case: to apply the law, not along the lines of subjective perceptions of justice, but according to the text of the law.
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Hamilton explained that the federal judiciary “may be said to have neither FORCE nor WILL, but merely judgment… The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
In other words, judges acting as legislators would destroy the very purpose of the judiciary itself.
Yet over the past several decades, the Left has embraced the idea of judicial supremacy: the notion that the judiciary ought to act as a robed oligarchy deciding what is good for Americans.
Thus, the Left has celebrated Wickard v. Filburn (1942), in which the Supreme Court decided that the federal government had the power to regulate virtually every area of American commerce; Roe v. Wade (1973), a decision legalizing abortion across America without even the most peremptory respect for the text and history of the Constitution; the National Federation of Independent Business v. Sebelius (2012), in which the Supreme Court suggested that it was perfectly in line with the Constitution for a legislature to force you to buy a product you don’t want to buy; and Obergefell v. Hodges (2015), a decision stating that the 14th Amendment to the Constitution, ratified in 1868, mandated that states across the country legalize same-sex marriage.
None of these decisions were remotely justifiable under the text of the Constitution. But they pleased the Left, and thus the Supreme Court was elevated to a godlike position of power in the minds of the Democratic Party.
Now the balance of power has shifted. If Trump plays his cards right and nominates an originalist like Amy Barrett to the high court, there will be four votes for originalism, and Chief Justice John Roberts will become the swing vote.
The Left, because it has worshiped at the altar of the Supreme Court for decades, is panicking; they believe that the new Supreme Court will run roughshod over court-created, anti-constitutional rights.
But that’s only because their perception of the federal judiciary was inherently flawed from the beginning. They supported a judiciary that exercised will instead of judgment. A a new court exercising judgment rather than will must inherently overrule past willful misappropriation of power by the judicial branch.
In the end, a Trump-created Supreme Court majority would not implement conservative policies from above. It would return the judiciary to its original status under the Constitution.
That would leave room for legislatures – Democrats or Republicans – to make laws that don’t conflict with the Constitution. And it would mean that Americans could stop panicking every time a Supreme Court justice retired – because the Supreme Court just wouldn’t matter that much anymore.
That’s the way the founders wanted it. And they were right.
Ben Shapiro is editor-in-chief at The Daily Wire, a conservative news and opinion website. He can be reached at @BenShapiro.