In fact, the threat to Democratic political rule is even bigger than Roe, which was about just one thing. What is at risk is the rationale for judicial overreaching that was created in the court’s 1965 decision, Griswold v. Connecticut.
Supreme Court decisions don’t often produce phrases that enter the vocabulary of political life, but Griswold did. The phrase is “penumbras formed by emanations.”
Griswold is worth recalling because it established a right to privacy, though the Constitution says nothing about any such right. Justice William O. Douglas famously explained how this could be, arguing that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Douglas’s “penumbras” decision, though ridiculed, defined the post-’60s era of “judge-made law,” in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it.
.. Having all but abandoned the legislative branch to achieve their goals, progressives now think the Trump Supreme Court nominations will close off the judiciary as a policy tool. Thus, the hysteria.
In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.
.. In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.
This Is the World Mitch McConnell Gave Us
it is, essentially, a kind of shrine to the political career of Mr. McConnell, not unlike the exhibits on Babe Ruth or Hank Aaron you’d find at the Baseball Hall of Fame.
.. it memorializes a politician who shows no sign of leaving the stage any time soon.
.. What’s most unusual, though, is what it chooses to highlight. There are a few artifacts from Mr. McConnell’s youth — his baseball glove, his honorary fraternity paddle — but most of the exhibits are devoted to the elections Mr. McConnell won, starting with high school and on up through Jefferson County executive and the Senate.
.. When I visited the room while researching my 2014 biography on Mr. McConnell, I was struck by what was missing: exhibits on actual governing accomplishments from the Senate majority leader’s four decades in elected office.
That absence confirmed my thesis that Mr. McConnell, far more even than other politicians, was motivated by the game of politics — winning elections and rising in the leadership ranks, achieving power for power’s sake — more than by any lasting policy goals.
.. it is becoming increasingly clear that Mitch McConnell is creating a legacy for himself, and it’s a mighty grand one.
.. Mr. McConnell has created the world in which we are now living. Donald Trump dominates our universe — and now has the power to fill the second Supreme Court seat in two years. Mitch McConnell, who has promised a vote on whomever the president nominates “this fall,” is the figure who was quietly making it all possible
.. First, there was Mr. McConnell’s vigorous defense, going back to the early 1990s, of the role of big money in American politics
.. helping shape the conditions for his appeal.
.. he was well aware that he, as someone lacking in natural campaign talents, and the rest of the Republican Party, as more business-oriented than the Democrats, would need to maintain the flow of large contributions to be able to win elections. “I will always be well financed, and I’ll be well financed early,” he declared after winning his first race for county executive, in 1977.
.. culminated in the Supreme Court’s 2010 Citizens United ruling eliminating limits on corporate spending on elections, which Mr. McConnell followed up by blocking legislation to disclose the identity of large donors.
.. the spread of big money in politics had done so much to sour the public on government, creating a ripe target for the Tea Party and, later, for a billionaire populist running against “the swamp.”
.. laid the groundwork for the right-wing insurgency of 2009 and 2010
.. his decision to withhold Republican support for any major Democratic initiatives in the Obama years. This meant that Republicans had less influence on the final shape of legislation such as the Affordable Care Act than they would have had as fully willing negotiators.
.. fueled the rise of the Tea Party, which was motivated substantially by the notion that Mr. Obama was “ramming things down our throats”.. his refusal to hold a confirmation hearing, let alone a vote on Merrick Garland, Mr. Obama’s nominee to replace Antonin Scalia on the Supreme Court, despite the fact that the nomination was made a full 10 months before the end of Mr. Obama’s term. This refusal exploded norms and dismayed Beltway arbiters who had long accepted Mr. McConnell’s claim to be a guardian of Washington institutions. It also provided crucial motivation to Republicans who had grave qualms about Mr. Trump but were able to justify voting for him as “saving Scalia’s seat.”.. Mr. Obama had been prepared that September to go public with a C.I.A. assessment laying bare the extent of Russian intervention in the election. But he was largely dissuaded by a threat from Mr. McConnell... During a secret briefing for congressional leaders, The Post reported, Mr. McConnell “raised doubts about the underlying intelligence and made clear to the administration that he would consider any effort by the White House to challenge the Russians publicly an act of partisan politics.”.. Mr. McConnell’s doing away last year with the 60-vote requirement for Senate confirmation, to get Neil Gorsuch seated.. In the 1970s, when he ran for county executive in Louisville, he secured the pivotal endorsement of the A.F.L.-C.I.O. by pledging to back collective bargaining for public employees (a promise that went unfulfilled), and while in office he worked effectively behind the scenes to protect abortion rights locally... Mr. McConnell saw the rightward swing of the Reagan revolution and decided to hop on board for his own political preservation as a Southern Republican. These days, Mr. McConnell has made explicit, with taunting tweets among other things, that he views long-term conservative control of the Supreme Court as his crowning achievement... Holding a long-term majority on the court greatly aids his highest cause — Republican victories in future elections — as recent rulings on voting rights and gerrymandering demonstrated once again.Whether Mr. McConnell decides to add an exhibit in the Civic Education Gallery documenting his role in the rise of Donald Trump is another matter. The final historical judgment on that score will not rest with him, in any case.
We’re About to Find Out How Bad It Will Get Without Justice Kennedy
Among other things, Justice Kennedy was the bulwark against legal assaults against abortion, perhaps the one issue, more than any other, where the court’s influence and public attention so clearly intersect.
.. With Justice Kennedy on the bench, the thinking among liberals went, how bad could things get? Now that he’s gone, we’re about to find out.
.. After he had appeared to invite a challenge to partisan gerrymandering way back in 2004, a case finally arrived in the just-concluded term, with the social science measures of partisanship he had asked for. But Justice Kennedy ducked without even writing to explain why as the court decided the case on narrow technical grounds. And though his principal left-leaning legacy is his expansion of gay rights, especially marriage equality, he settled for another narrow resolution this month, writing the majority opinion that favored the religious objections of a Colorado baker over a gay couple’s right to be treated like anyone else when they walk into a store and order a wedding cake.
.. To a degree, this step-by-step development of law is Chief Justice John Roberts’s approach, too.
.. Consider, for example, that Justice Neil Gorsuch has already made it clear that he’d like to revisit big and seemingly settled questions. This week, he joined Justice Clarence Thomas in questioning whether the Voting Rights Act applies to electoral redistricting at all.
.. “The degree of civilization in a society can be judged by entering its prisons,” he wrote, quoting Dostoyevsky.
.. he agreed with his four liberal colleagues in 2016 that Texas couldn’t close down clinics by claiming to protect women’s health, since the facts contradicted that claim. None of the conservatives on the court have given the slightest sign of stepping into those shoes. It’s just a matter of how far and fast they tack in the opposite direction.
Mitch McConnell is winning the long game
McConnell says:
The largest tax reduction in 31 years has contributed to the best economy in 18 years. Defense spending is up, many Dodd-Frank banking rules and the Obamacare individual mandate have been repealed. Drilling in the Arctic National Wildlife Refuge, blocked for 38 years, has been approved, as has a reconfigured National Labor Relations Board, a source of much Obama administration mischief. The Congressional Review Act, under which Congress can disapprove many regulations issued by federal agencies, has been used 19 times since it was enacted in 1996 — 18 of them during this Congress.
.. This, says McConnell, constitutes the best 18 months of center-right governance in his Senate career, which began when Ronald Reagan’s second term did. There also are the judges.
.. By preventing a vote on President Barack Obama’s nomination of Merrick Garland
.. McConnell ended the requirement of a supermajority to stop filibusters of Supreme Court nominees
.. To prevent Republicans from reciprocating with filibusters against Obama’s packing-by-enlargement of the nation’s second-most-important court, the U.S. Court of Appeals for the District of Columbia Circuit, Democrats changed Senate rules to bar filibusters of judicial nominees other than those for the Supreme Court. McConnell removed that pointless exemption to make possible the confirmation of Neil M. Gorsuch.
.. But without filibusters of legislation, he says, the nation might have socialized medicine, guaranteed government jobs, card-check workplace unionization, a ban on right-to-work laws, and other afflictions.
.. since popular election of senators began in 1914, Republicans have never had more than 60 senators.
.. Almost 30 years after the end of his presidency, Reagan still shapes events because of his nomination of Justice Anthony M. Kennedy, who often has been 20 percent of a court majority. Three decades from now, McConnell will be shaping the nation through judges who today are in their 40s, some of whom might be destined to be Gorsuch’s colleagues. This is the long game.