Opinion: Democrats are overreacting about the Supreme Court


WAPO
With the end of the Supreme Court’s term, Democrats are denouncing the court as ideologically motivated, extreme, undemocratic, even destabilizing. Their angst is understandable, but it’s misguided.

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It’s understandable because, until recently, progressives were able to rely on the court to achieve or ratify many of their most important policy goals. It’s misguided for at least two reasons. First, this court is not ideologically motivated — that is, committed to conservative outcomes. It is committed to a textualist approach that sometimes will produce outcomes that political conservatives cheer and sometimes will infuriate them.

Second, Democratic warnings of a constitutional apocalypse — with the court supposedly poised to strip away Americans’ rights to contraception (Griswold v. Connecticut), homosexual sex (Lawrence v. Texas), same-sex marriage (Obergefell v. Hodges) and other rights not explicitly mentioned in the Constitution — are overblown. The court is not inclined to do any such thing.

Any impression that conservatives could rely on this court for conservative outcomes was dispelled on the final day of the term. The court upheld the Biden administration’s repeal of President Trump’s “Remain in Mexico” policy. It also declined to review New York state’s vaccine mandate for health-care workers, which lacks a religious exemption.

Given strong legal arguments on both sides of the “Remain in Mexico” debate, an ideologically motivated court could have found plenty of reasons to strike down the repeal. Instead, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the court’s liberals in ruling it lawful, with Justice Amy Coney Barrett agreeing but for a procedural point. Similarly, the right-wing Supreme Court that Democrats imagine would have taken the vaccine case to cheers from conservatives. A few days earlier, the court disappointed law-and-order conservatives when it ruled 9 to 0 that convicting doctors allegedly operating opioid “pill mills” requires that they genuinely believed they were prescribing the medication improperly.

These mixed results are best understood by recognizing that this court is reliably conservative in the jurisprudential sense, rather than the ideological sense. That is, the majority — rather than pursuing a conservative policy agenda — is focusing on the text and intent of statutes and the Constitution, in contrast to the more flexible “living Constitution” approach popular on the left. While that often results in decisions that please conservatives, this court is not afraid to rule otherwise when that’s where textualism — or originalism, as many call it — leads.

And that’s how it should be. A court that never disappoints conservatives is likely a court that believes in a conservative version of the living Constitution.

As the majority in Dobbs v. Jackson Women’s Health Organization notes, “Americans hold sharply conflicting views” on abortion policy, but the Constitution is silent on the issue. For the textualist justices, that is the bottom line.

While textualism is not an exact science, it takes a lot of hand-waving to conjure up a right to abortion or even a broad right to privacy in the words of the Constitution, as written and amended. Nor can abortion rights be found among the common law rights that were implicitly incorporated into the Constitution. Roe v. Wade can’t change that fact. The issue must, therefore, be left to the democratic process.

Textualism easily explains the court’s other conservative decisions this term as well. The Second Amendment explicitly guarantees “the right of the people to keep and bear Arms.” Likewise, the court’s decisions on religion and the administrative state are firmly grounded in the text and intent of the First Amendment and the Constitution’s placement of lawmaking authority in the hands of Congress.

While this approach will often disappoint progressives, the rights to contraception and the like are in no danger. To start, the Dobbs decision cannot be used to undermine those rights because the court made clear that abortion is “critically different”; it involves ending what Roe called a “potential life” and “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

The parade of horribles trumpeted on the left assumes that the Dobbs majority has a hidden agenda to overturn other unenumerated rights. But there is no secret agenda. The conservative legal movement has been shouting for 40 years that Roe should be overruled. There are few if any voices in that movement calling to overrule Griswold, Lawrence or even the more recent Obergefell decision.

Those three decisions resulted in or from profound changes in our culture and in popular opinion. Roe never stuck in the same way. Regardless of what the court says about Griswold and Lawrence, the democratic process would prevent any state from outlawing contraception or homosexual sex. Bans on either have moved outside the Overton window, and prohibition of same-sex marriage is quickly moving in that direction.

What the future does hold is more controversial cases in the next Supreme Court term, including blockbuster cases on affirmative action and the power of state legislatures to set voting rules. Next term will tell us a lot more about the fortitude and vitality of this court’s conservative majority. I expect it will continue to be guided by principled textualism, fearing neither intense criticism from the left nor disappointment among some conservatives when those principles lead to liberal outcomes.

Yup...

They’re triangulating.

It’s red meat (vegan gluten free cage free) for the wackos and they hope to push the center further left. Same 💩 as always playing with violence and force with their ideas and the RepubliCANTS are playing by ignored ROI.

Road to dictatorship:

Assassinate Supreme Court justices.
Pack the Supreme Court based on political ideology.

The Democrats have already embarked while propagating the “Big Lie” distraction.

Is that kinda like the alien distraction?

Maybe a Universal Truth?

ignoring the assassination part until it happens, manipulating the placement of Supreme Court Justices is wrong no matter which of the currently large parties does it...(bigger picture/country over party and stuff)

like blocking the process of one side's nominee because the election is 8 months away (and getting your side to pick after taking over for one of the seats) and then pushing one through after voting has already started (voting that threw that side out)?

That kind of political ideology?

Do you really believe in what you espouse?

I ran out of parentheses.

Frank Baby..........I bet you look fantastic in those rose colored glasses

all three of Trump's SCOTUS appointees signaled during their confirmation they would NOT over-turn Roe...

guess honesty is not a quality for a Justice of SCOTUS ...

the right didn't expect honesty from Trump, when he was their POTUS...they continue to support his lies...

They all perjured themselves.

Isn't that a federal offense?

They should probably do something about that so they don't have to throw themselves in prison due to stupid laws and stuff.

I'm kinda pale so I look better in black, blue. or deep red, according to The Lovely Caren.

Hey! I said the actions would be wrong regardless of which side did it.
But in this time frame, McConnell did it. (check out his wife's family, source of income, and her previous job).

It can't be good just cuz we get the guy/gal we want.

Should a potential judge declare his opinion on a case before a case has even reached court?
Did they lie? Or did they just tell the Dem Senators what they wanted to hear during confirmation?

Clarence just did as much, but that's fine.

Yes, they lied and told the Dem Senators what they wanted to hear... under oath... in a country where they are supposed to be held to a higher standard... because they are judges.

The only thing more important than your happiness is mine so get on it.

Since the question was purely hypothetical they could say whatever the Prog Senators wanted to hear. Dem Senators are pretty stupid and evil anyway. They like to be stroked with visions of blood-soaked fetuses.

That's what the supreme court said!!!

I think you're the one thinking of blood soaked fetuses... pretty sure that's not the thoughts going through anyone else's mind.

You paint a disgusting picture... which implies you have disgusting thoughts.

Oh, and you lie again... (SHOCKER!!!!)

Here... their actual answers, not some stupid sh*t from some source with a stupid wordpress site:



Perjurers!!!!

Seriously, they should be imprisoned... they blatantly lied under oath to obtain a seat on the supreme court.

To the RayOnites (not sure what to call you guys, you need a name because RayR wouldn't be happy unless I gave you a cutesy name)...

You know why it's so hard to argue with you RayOnites?

Because you guys believe in delusional sh*t then when presented with actual facts, actual information, you think they are full of sh*t...

When really it's you... it's always been you.

Look into what causes people to believe in conspiracy theories. It affects most the population in one way or another. There is just a huge trough of information on this topic. I've found it fascinating for a long time.

People like Ray exploit that.

Like The Eurithmics said, some of them want to use you, some of them want to be used by you!

Like GI Joe said, knowing is half the battle.

Ignoring the assassination part…because there is a guy currently charged with attempting to assassinate a Supreme Court judge? Yup. Ignore that.

Ignore packing the Supreme Court because one political party is advocating taking over the government through that action? Yup ignore that.

Blocking one side’s nominee? Did that Garland fella have any chance of getting confirmed? I know the radical far left likes to complain about that but the fact is he wasn’t going to get confirmed. From what I’ve seen the closest he should be to the Supreme Court is parking cars.

Was that another STRAW MAN TANTRUM Ben? 🤔
I think so, it was definitely a TANTRUM.