Judge Kethledge has built an outstanding record of curtailing administrative state power.
A Supreme Court Justice has died barely a month before a hotly contested election, in a year of several overlapping crises. If Mr. Trump succeeds in replacing Ruth Bader Ginsburg, he will be the first President since Reagan to appoint three Justices. What this nomination contest means for the upcoming election is difficult to pinpoint, however, it’s worth noting that the Court is the only thing all GOP factions agree on.
President Trump’s third Supreme Court nomination would break an institutional equilibrium that has lasted thirty years, with each president getting two Justices as parties alternate in the White House. Obama might have gotten a third when Justice Scalia died in February 2016, but Democrats didn’t have the votes in the Senate to push through Merrick Garland’s nomination. Electoral politics denied Democrats the ability to fill an open seat in 2016, and electoral politics in 2020 gives Republicans the opportunity to achieve a truly conservative Supreme Court for the first time since FDR.
Trump’s third Court appointment should prompt reflection on our constitutional crisis. During a generation defined by divided government, the Court has been the engine of social Progress—remember Obergefell and Bostock, among others which reduced the representative branches to menial status. Overall, Republicans have failed to achieve their decisive originalist reorientation of the Supreme Court, but if this nomination succeeds, Democrats think their nightmare would become reality: the long sought conservative transformation of the federal judiciary.
Progressivism has dominated the Court since FDR, with certain exceptions. Certain Republican justices not only accepted, but actively supported it. Republican presidents appointed Justices who voted for Roe, Casey, and Bostock. Conservative opinions are grudgingly accepted, but progressive academic and legal elites constantly work to undermine them. Progressive opinions, despite being recent academic inventions, are holy to the Court. Thus, progressivism has made the Court seem all-powerful and disdainful to many conservatives. This sparks a belief among those conservatives that it’s win or die, since Progressives will outlaw their beliefs.
This conflict changes the character of the Supreme Court—it’s long been the only arbiter both parties recognize, but liberal abuse has earned conservative fear, and, if this dynamic continues unabated, disobedience will follow. Progressivism is unsuited to run the Court, since law is supposed to be reliable and they keep changing it. Will we experience a return to the intentions and practices of the Founders or something else? In order to guess intelligently, we have to abandon FDR’s progressive vision for the Court.
Our politics has changed too much—including by Court decision—for the Court to stay the same. If we dare, we can see, by looking to our history, the direction of the change and the crisis to which it has led us. The origin of our Court is FDR’s infamous threat to pack it—the titan of modern American politics was angry that the Court was striking down New Deal legislation at the moment progressivism triumphed in American politics.
After FDR’s 1936 landslide reelection, Democrats were in a position of dominance. Nevertheless, Congressional Democrats feared to use their constitutional authority to pack the Court, because they revered the Constitution more than FDR. But the Court was even more fearful of this providential man—a popular president in a national crisis. FDR appointed five justices in his second term, another three in July ’41.
This part of FDR’s great legacy gave liberalism power over a Constitution otherwise difficult to amend. It has proved inspirational—Democrats are again threatening to pack the Court to have their way without having to build large national coalitions. Now, the Constitution allows Congress to set the number of Justices, which varied until 1869. But we fear court-packing because it’s unprecedented and threatens tyranny—reducing law to partisan power.
We cannot assume that our partisanship will be self-limiting and venerate the Constitution, as Madison in Federalist 49 and Lincoln in his Lyceum Address implored. For what is Progress but an attack on all venerable things? We have had a century of it in our politics and the Progressive Court is now advancing the liberal project by attacking private life, not only public institutions, which was thought unthinkable until recently.
Truth to tell, faith in the Constitution is as revolutionary today as it was in 1787. The Constitution is no longer taken for granted, but has become a partisan issue at elite and press levels. Progressive activists now routinely denounce various parts of the Constitution that seem to them undemocratic—the Senate and the Electoral College especially; threats to pack the Court, too, as noted. But will Republicans defend the Constitution in this partisan struggle?
This is far from obvious. GOP presidents appointed the vast majority of Justices since President Eisenhower, giving us the liberal justices who redefined America. GOP elites take the federal judiciary very seriously and the Federalist Society has helped them achieve remarkable feats of nominating and confirming judges during Trump’s tenure in office. But many GOP elites have little sympathy for conservative beliefs. Indeed, two Republican appointed justices helped liberals radicalize civil rights legislation just this year, in Bostock.
Nor is it obvious that the populists—more in the media than in politics—opposing these elites are much better. Yes, our elites betray their electorate, and shamelessly, but we’re not much likelier to restore the Constitution to its rightful preeminence with people who only care about it because they know partisanship sells, the harsher the better.
Therefore, it might seem unlikely that opposition to Progress should lead to a restoration of the Constitution instead of leading to increasingly violent partisanship and lawlessness. But conflict is not just fearful—it is also revelatory. What was obvious to the wise man who paid attention to FDR’s shockingly bold attacks on our Constitutional order was not obvious to everyone else, and the belief in Progress was once popular, before being discredited by the catastrophes of American society starting in the late 60s. Now we can all oppose Progress.
Liberal control of our elite institutions, industries, and our culture has not been good for most of us. We can oppose Progress with conviction now that we see what horrors it has produced and what madness and mobs it encourages. But we need a common purpose, not just a common enemy—we need a vision of American life and politics to put the Progressive ideal to shame. The only one available is the Constitution, which made America great.
We made terrible mistakes, though they are understandable, in replacing our constitutional order with Progress. We have become divided and ruined many of our communities in the pursuit of perfection. Many are now threatening to remake the civic compact if their political aims are defeated. To return from arrogance to moderation and prudence requires that we defeat Progressive oligarchy.
Conservatism, to be at all conservative, after so much political decadence corrupting our institutions, must have recourse to superior powers and superior legitimacy. Otherwise, Progress wins by default. The Constitution and our Founders offer both a past we can treasure and a wisdom that could make us take politics seriously again. Perhaps only now that we fear to lose it all can we really learn what power comes with a true political science.
The fight for the Court is a part of this needed restoration, but it must be understood in light of the ultimate purpose. We must make the Court obey the Constitution rather than rewrite it. We must above all fight against the liberal arrogance of creating philosopher-kings who attack our rights to property and the rest of our lives, because we now see the catastrophic consequences of progressive rule—lawlessness and decay.
Elites have obeyed liberalism’s ideas only to see the institutions they ran corrupted and distrusted by multiple segments of the population. Populists oppose this corrupt power only to threaten more corruption and the destruction of institutions. We must fight our political fights and use our victories to build, or rebuild institutions. This means we need a Supreme Court to put an end to the rewriting of the Constitution and to practice and preach a restoration.