Should Conservatives Give Up On the Supreme Court As a Court?

This morning Andy McCarthy takes up a topic that we discussed on our podcast yesterday: the fact that in major, publicly-important cases, the liberal justices always–and I mean always–vote as a political bloc:

Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination.

Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory. But not the Court’s lefties, not on the major cases. And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable. But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.

That certainly is an accurate description of where we are now. Andy suggests that conservatives retire their archaic ideals when it comes to the Court:

That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations. If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.

I don’t think Andy is seriously proposing a constitutional amendment here. But then, what is to be done? Prescription aside, his description of where we are today is accurate:

Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law. The SCOTUScare case, King v. Burwell, was not a constitutional case at all; it was a straightforward matter of statutory interpretation. What made it ostensibly straightforward was the law: a statute that says, “an Exchange established by the State,” cannot possibly mean “an Exchange not established by the State.” If we were a nation of laws, such a case would never make it to the highest court in the land.

But we are a nation of will, the will of a determined political movement, so the law never had a chance.

The Supreme Court is not unique in being captured by progressives. It is a lagging indicator, its crush of late-June edicts reflecting what’s become of the political class of which it is now very much a part. The president rules unilaterally and in contravention of the laws. Half of Congress applauds, the rest shrugs and says there is nothing to be done. The elements of the progressive agenda the political branches don’t feel safe implementing are delegated to anonymous bureaucrats in the administrative state. The courts are there to finish the job, to give any mopping up the aura of legal rigor.

But none of it is about the law, or even expected to be. That time is gone.

That is a dismal assessment, but I can’t argue with it. Still, the question remains: what should conservatives do? Despite everything, we do occasionally elect conservative (or at least Republican) presidents. They get to appoint Supreme Court justices. So if Andy is right, we should forget about appointing people who actually intend to judge, according to legal principles, and do what the Left does: appoint political agents who are lying in wait to make political decisions.

This is the next question: if we start playing the Left’s game, are there previously-unknown, newly made-up “fundamental rights” that conservative justices should be primed to discover? The irony here is that the liberties conservatives care about are actually in the Constitution; the First and Second Amendments, for instance. But if we get creative, we should be able to go farther.

For example, how about a “fundamental right” not to pay income taxes in a percentage exceeding that which other Americans are charged? Why isn’t the progressive income tax a violation of the equal protection clause? That is a much stronger argument than the one the Court has just accepted on gay marriage. Or, how about a theory that the Internal Revenue Service is violating Americans’ right of privacy–that same right of privacy that the Court found among the emanations and penumbras of the Constitution’s actual provisions–in seeking extensive information about taxpayers’ finances?

Or how about a fundamental right to affordable energy–or, rather, to be free of government policies that unreasonably raise the cost of energy? If the Supreme Court discovered such a right, the EPA’s anti-coal regulations would be unconstitutional. You could write a decision in support of such a “fundamental right” that would be at least as persuasive as Justice Kennedy’s “fortune cookie” travesty. What is more fundamental than heating your home and driving your car? To paraphrase Justice Kennedy, what if a voice cries out in the night, saying, “Honey! Can you turn the heat up?”

If conservatives are willing to abandon the archaic notion that the Supreme Court is a court and not a super-legislature, there is no telling what conservative policies might be advanced.