A good Supreme Court
By Bruce Walker
Those on the Left are willfully ignorant of history. They are not just ignorant of recent history, which could be politically inconvenient, but Leftists have gaping holes in the broad patterns of history. The horror that is North Korea, for example, is simply assumed to have been inevitable and the mocking of General MacArthur and his anti-communism in episodes of MASH are as "funny" to the Left as thirty years ago (it is almost as if a radio program in the 1930s that dismissed concerns about Hitler and Nazism were replayed today and accepted as clever and wise.)
The deep penetration of American institutions and government by the Soviet Union, which is no longer a matter of conjecture but is indisputable fact and which cost the world and America trillions of dollars, the enslavement of billions of people, the death of hundreds of millions of people (where, by the way, are the lawsuits against those who helped in this greatest enslavement in human history – where, even, is the outcry for exposure and moral condemnation?) is a ho-hum story to the Leftist establishment, who know little, if anything, about Venona, the admissions of post-Cold War communist spies, the access under Yeltsin to damming Kremlin archives and the rest: the story of the century merits less historical attention than, say, the melancholia of Lincoln.
How deeply does this willful ignorance, this self-induced amnesia reach? Consider one of the greatest political fights of the greatest Leftist icon in American politics, FDR. Conservatives and other normal people have never said that the Supreme Court should have no constitutional role or that it should roll over and play dead to a bare majority of Congress and the President. What we have maintained consistently is that the Supreme Court should act as a check on legislative power, but not as a legislature.
So, the problem that conservatives and other normal people have with Roe v. Wade is not that the federal government has made abortion on demand the law of the land in every state, but rather that the Supreme Court, rather than Congress, has made this law. At the risk of stating the obvious – and one always must with Leftists – the Supreme Court in Roe v. Wade could have simply found that there was a protected federal privacy interest in abortion and then held that if Congress wished, therefore, to pass laws limiting the right of states to regulate abortion, then Congress could do so.
Or the Supreme Court could have determined, if Congress tried to ban abortion in all of the fifty states (three of which had legalized abortion the time of Roe v. Wade), that this was unconstitutional either because it violated the rights of the states in the Ten Amendment to their inherent police powers or because it violated the rights of the individual under the Tenth Amendment whose rights are also protected from usurpation by Congress.
The Supreme Court once served this useful role and the Left hated it with a fury which led Franklin Roosevelt, whose advisers were quite consciously trying to create a corporative state like Fascist Italy, a nation whose government and leader many FDR Leftists, to try to get Congress to increase the number of Supreme Court justices so that he could "pack" the Supreme Court. Tragically for America, although the Supreme Court struck down under "Substantive Due Process" some of pro-Fascist legislative proposals of the FDR, under political pressure of the Left some justices switched vote later – "A Switch in Time Saves Nine" was the ditty of the day – and the residue of vast bureaucratic powers and the corresponding shrinking of individual rights followed.
If the Left has forgotten, we should not. If conservatives and other normal people can get a solid six votes on the Supreme Court, then the first use of genuine constitutional powers by the Supreme Court – striking down federal laws and regulations which violate the constitutional rights of most Americans – could easily be the most vital victory in the coming revolution of sanity and decency over madness and indecency.
Conservatives should worry less about what powers the Supreme Court arrogates to itself and focus more on filling the Supreme Court's very old Leftists with robust conservative activists. That means holding the Senate, holding the White House, and waiting. It is worth the wait. A whole multitude of current problems could be quickly resolved by one term of a conservative activist Supreme Court.
Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
Get weekly updates about new issues of ESR!
© 1996-2013, Enter Stage Right and/or its creators. All rights reserved.