The Supreme Court's days as a super-legislature are over, and Democrats aren't happy about it
by Washington Examiner
| September 06, 2018 12:13 AM
On Day Two of Judge Brett Kavanaugh’s Supreme Court confirmation hearings, a number of Democrats on the Senate Judiciary Committee appeared to be sizing themselves up for black judicial robes.
If they weren’t doing that, they were lamenting the fact that someone of their own great wisdom couldn’t sit on the Supreme Court — the highest legislature in the land, they seem to think — and rule the country from their lifetime position.
Democrats placed themselves one after another into Kavanaugh’s seat on the District of Columbia Circuit Court of Appeals to second-guess rulings, which is only natural for those who think the courts are there to make policy decisions. Ranking Democrat Dianne Feinstein, D-Calif., complained that Kavanaugh had, in an opinion on D.C. gun control laws, deemed that semi-automatic rifles are in “common use” and thus not, under Supreme Court definition, something the D.C. government could ban. Feinstein was weirdly outraged about this characterization, given that private citizens in the U.S. own something on the order of 50 or 60 million such rifles, and possibly more.
Sen. Dick Durbin, D-Ill., complained that Kavanaugh had dissented from an emergency ruling that ended up rushing a minor migrant girl in the care of the U.S. government off to get an abortion without parental consent. Durbin also complained about Kavanaugh’s interpretation of a complicated Supreme Court case that had deemed illegal immigrant workers unable to vote in workplace unionization elections.
For Sen. Amy Klobuchar, D-Minn., the problem was that Kavanaugh had written an opinion favoring two mergers in the grocery and health insurance industries.
All these opinions about Kavanaugh’s rulings have one thing in common: They come from politicians who seem to think judging is a lot like what they do for a living. But judges don’t make policy, and the Supreme Court is not a super-legislature. That’s why a good judge who decides cases based on law and precedent will not like all the outcomes of the cases he hears.
Federal judges don’t run for their seats or make promises on how they will vote. And they are not supposed to make rulings that set the policies that affect millions of Americans. Policy is supposed to be a function of the democratic process, not something created by a lifetime-appointed nine-person oligarchy.
Democrats are upset about where the Supreme Court has been heading not because it isn’t doing its job, and not because it is overly partisan, but because they don’t like the fact that cases going there are increasingly being decided based on the Constitution and the law and not on motivated reasoning in search of liberals’ pet causes.
Democrats look back wistfully to the era before 2006, when they could at least often count on the courts to stymie conservative reform using such motivated reasoning. That hasn’t been the case as often lately, and they’re not happy.
They can’t just come out and say that after years of treating Supreme Court rulings as a form of Holy Writ — and also with two-thirds of Americans approving of the Supreme Court as an institution. So they mislead people. For example, Sen. Sheldon Whitehouse, D-R.I., said in Wednesday's hearing that the problem with the Supreme Court is that it has taken a hash, partisan turn under Chief Justice John Roberts and now consists of one narrow 5-4 decision after another. But this is fake news. In Roberts' 13 years, the court has produced 172 5-4 or 4-4 decisions, according to the Supreme Court database. In the 13-year period between 1970 and 1982, there were more than 330 such narrow split decisions. And the results are similar for any 13-year period between 1970 and 1990. You'll get similar results. Are we in an especially partisan era on the court? Not at all.
The good news is that the Supreme Court has been and likely will continue moving back in the direction of providing predictable, law-based and Constitution-based rulings, rather than moving forward the Left's agenda. That's why the Democrats are fuming.
