Liberals need to sleep in the bed they've made

You can't use the courts to override the will of majorities for generations and then complain when the other side harnesses that power to undo the very same work

The Supreme Court.
(Image credit: Illustrated | iStock)

So this is it, huh? I must say, the end of American democracy feels strangely like whatever stage in its terminal decline we were in just before. Look at the news: Spicy McNuggets, pro football back, a new and even more tedious Rolling Stone list of the 500 greatest albums of all time, and, wow, a Republican Senate set to approve a Republican nominee to the Supreme Court! I suppose since this is the 487th constitutional crisis I have lived through in the last four years, I should be used to the letdown feeling by now.

As far as I can tell the only meaningful objection to President Trump's plan to replace the late Ruth Bader Ginsberg with a new justice before the end of his first term is that it would be unfair. Democrats deserve another seat on the high court, you see, as their reward for not winning the White House or the Senate.

I don't mind complaints about fairness. It probably was unsporting for Senate Republicans to insist in 2016 that they were refusing to consider Merrick Garland's nomination because it was an election year. But it was also ridiculous to take them at their word that if the president at the time had not been Barack Obama, they would have believed anything of the kind. Still, like many people, I would have preferred a more honest answer: We are not doing this because we don't have to, and that's that. If Democrats want to play tone cop here, go ahead.

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What I do not want to listen to is liberal whingeing about "unelected judges" or judicial supremacy or kritarchy or whatever. It is finally time for them to sleep in the beds they have made. In the last 60 or so years there has been nothing that Democrats have not been content to allow liberal justices to plumb out from the supposed depths of the 14th amendment, save perhaps for its plain meaning: that no person, born or otherwise, should be deprived of life, liberty, or property without due process of law. Birth control, abortion, the death penalty, the definition of marriage — over and over again, the wills of majorities have been overturned by members of the Supreme Court who knew better than the American people. The still somewhat remote possibility that after several decades of largely fruitless effort social conservatives might just be able to use the same power to reverse a few of the reversals — probably just one, in fact — is not tyranny. The fact that it did not happen many years ago says less about the health of our supposed democracy than it does about the cynicism and incompetence of the GOP.

I am of two minds myself about the de-facto legislative powers assumed by the court in recent decades. The direct election of senators left our federal government in need of a true revising upper chamber after the manner of the House of Lords. This is essentially the role that the court has taken since the 1950s. It may or may not be a regrettable development, but it does seem to me largely inevitable.

So too does a future in which attempts are made by both parties to increase the number of quasi-judicial senators or life peers in what I think of as our upper upper chamber. This is something I have been writing about for years. If court packing becomes a live issue the most likely possibility is that some kind of compromise is reached that involves the creation of "term" justices who serve for four or six years alongside colleagues who hold their positions for life.

I say why not. Go ahead. Try to pack the courts. Democrats should also try to get the American people behind turning Washington, D.C., and Puerto Rico into states, and while they're at it, splitting New York into two more. Republicans meanwhile should start declaring "sanctuary states" wherever they hold power and declaring abortion illegal regardless of what the courts say. There will be protests and counter-protests on a scale unimaginable even by the standards of the last year, many of them violent.

At least this picture looks somewhat closer to the much-anticipated end of the republic.

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Matthew Walther

Matthew Walther is a national correspondent at The Week. His work has also appeared in First Things, The Spectator of London, The Catholic Herald, National Review, and other publications. He is currently writing a biography of the Rev. Montague Summers. He is also a Robert Novak Journalism Fellow.