With the confirmation of Judge Alito a near-certainty, the Nans, Kates, and Ralphs are bellowing “Here There Be Monsters” as they issue dire warning after dire warning of the direction the remade SCOTUS will take.
But they know, as do all the senators and most serious Court watchers, that there is no imminent threat to Casey/Roe, even if Chief Justice Roberts and soon-to-be-Justice Alito join in a bloc with Justices Scalia and Thomas. Even if Justice Kennedy was to change his view and join in ending the Roe Era and consigning it to the same bin of history as the Lochner Era, access to abortion would remain as the law of the land throughout most of the land.
Despite this, the left is genuinely panicked, and it is interesting to focus on the source of that panic. Its roots are in a greatly oversimplified view of the individual justices’ beliefs and a vastly understated complexity of the Court’s work, but it is a real panic nonetheless.
The four-square box below is NOT intended to represent accurately or even closely the real views of the justices. Rather, it does represent the left’s beliefs about the beliefs of the justices.
By “theist” I mean those who hold a belief in a God who is not indifferent to the actions of men and women. “Secularists,” by contrast, believe that the existence of such a God is, at best, unknowable.
“Constitutional majoritarians” are believers in checks and balances and separation of powers and the federal system, but also subscribers to the view that majorities working through representative institutions must ultimately control the direction of the country, bound only by the Constitution’s directives.
“Elitist anti-majoritarians,” by contrast, believe that no matter what popular opinion expressed through representative institutions may believe, that there are certain policy choices that must be imposed on the country, even if there is no clear constitutional backing for such a choice, and even if that choice has no history of legislative consent. In recent years, elitist anti-majoritarians have, for example, been committed to the abolition of the death penalty and for the imposition of same sex marriage, but they have many other policy preferences as well.
Many of the left’s opinion leaders are secular, elitist anti-majoritarians. Many more, while holding a sincere belief in God, are so committed to the idea of a public square empty of God that their political choices are indistinguishable from those of avowed secularists who reject the very idea of God.
Here’s how the left understands the direction of the SCOTUS:
The real fear on the left is not so much the possibility that a bloc is forming that will vote the wrong way, but that this bloc will raise arguments that are persuasive far beyond the narrow decisions the justices are called upon to render.
In recent years, it has been very rare for a majority or even a plurality of SCOTUS to speak in the language of traditional morality. (For an example of such language, see Justice Scalia’s dissent in Stenberg v. Carhart.)
Those majority decisions applauded by conservatives, such as Lopez and Morrison, have honored the values of constitutional majoritarians, but they are not the sort of decisions that employ arguments from a theist worldview, and they are far less troubling to the left than would be a majority-backed Scalia opinion on the subject of, say, partial birth abortion or a majority-backed Thomas opinion on the evils of race-consciousness in college admissions.
If a bloc of four justices does emerge that does begin to speak in its opinions in the language of constitutional majoritariansism and traditional, theist-morality, that will represent the launch of an entirely new class of legal battleship which, with the assistance of new media, will have a range for its 16 inch guns never before seen when it comes to arguing about the course of Constitutional Law. Further, that range will extend far beyond the legal debates before the courts. Persuasive arguments are very potent things.
It isn’t just the prospect of the decisions themselves that so alarms the left, I think, but also their fear of being totally and completely routed when it comes to persuasive argument.
The trumped up charge that a new SCOTUS majority will go hunting for occasions on which to impose their natural law driven jurisprudence is absurd.
But the prospect of tightly argued opinions in defense of majoritarian choices within our constituional framework which honor the traditional morality of the vast majority of Americans –well, that is something to look forward to if you are not a member of an elite who is certain that your views, while not widely shared, are nevertheless preferable to those of the unwashed masses.
If you are an elitist anti-majoritarian, though, you will be losing sleep as you lose your last bastion of power. Now you will have to win elections if you want to make policy, and that’s a daunting prospect indeed.