Over the next four years, conservatives risk well and truly losing the culture wars.
Gird your loins.
This most unusual of years has featured no shortage of unprecedented chaos—no shortage, that is, of petty looting, urban conflagration, anarchic savagery, and outright insurrection alike. This most unusual of years, blighted as it has been by the Democratic Party riots, has seen the reification of the very “American carnage” that President Trump famously inveighed against in his 2017 Inaugural Address.
But in a Joe Biden…er, Kamala Harris presidential administration, we would see an “awokening” of the federal judiciary so systemic in its all-encompassing breadth, and so grotesque in its ideological perversion, as to make that particular variety of carnage look positively tame by comparison.
By any numerical measure, the Trump administration has been uniquely successful in stacking the courts. Trump has appointed nearly 200 active federal judges, including three Supreme Court Justices. He has appointed more federal appellate court judges, who entertain final appeals in about 99% of federal lawsuits, at this juncture of his presidential tenure than any chief executive since Jimmy Carter—and the Hamas-loving Georgia peanut farmer benefited from a 1978 law that created a whopping 152 new vacancies.
Of course, while many of Trump’s (mostly lower-court) judicial appointees are bona fide rock stars, his Supreme Court picks have been less than fully stellar. Indeed, we have reached a crisis point in “conservative” jurisprudence, and it is now time to retire our outmoded bromides and reassess our first principles. What’s more, to over-emphasize the importance of the modern Republican Party’s much-ballyhooed judicial nominations apparatus—as the Senate majority leader, for instance, is wont to do—is to risk inadvertently buttressing that foremost object of Lincoln’s ire, the despotic and anti-constitutional myth of judicial supremacy.
But the sheer numbers, to an extent, do speak for themselves. Numerous circuit courts have “flipped” from majority Democratic to majority Republican control. Even that most accursed of appellate tribunals, the woebegone U.S. Court of Appeals for the Ninth Circuit, has had its Democratic-appointed majority substantially reduced.
A Harris administration, in hock to the Antifa-BLM civilizational arsonist agenda, would radically and permanently weaponize Hamilton’s “least dangerous” branch. Senile Joe, flanked by his far-Left Golden State Svengali, would—lest there be any doubt whatsoever—“pack” the Supreme Court. Of course he would. The packed identity-politics Court, whose new seats will purportedly all be filled by black women (Justice Stacey Abrams, anyone?), will be lost for at least a generation—and perhaps eternity. After discarding the legislative filibuster and perhaps also packing the Senate if the Democrats retake the upper legislative chamber, “President” Harris would assuredly also try to pack with statutorily created new vacancies the sundry lower courts—the very places, that is, where the Trump administration has been most dynamic and transformative.
What’s at Stake
It is very difficult, perhaps impossible, to see how Republicans could one day recover from this. The combined effect of these actions would be to concretize the Left’s long-held post-Cooper v. Aaron (1958), post-Warren Court reverie: the full superseding of Article I, whose Vesting Clause quite clearly states that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States,” with a black-robed Article III super-legislature.
What that would actually mean, in practice?
A Harris-packed judiciary would wreak havoc upon freedom of religion and religious institutions, bestow juridical legitimacy upon the persecution of anti-abortifacient nuns (an favorite pastime during the Obama Administration), legitimize the leftist-pagan coercion of religious business owners into violating the dictates of their own consciences, run roughshod over the crucial longstanding First Amendment “ministerial exception” doctrine for houses of worship, resuscitate the odious and nearly-slayed “Blaine amendments,” breathe fresh life into the farcical “Lemon test” that has been dying a slow doctrinal death for decades, and nationalize such dastardly trends as the thinly-veiled anti-Semitic animus and anti-Jewish targeting of Governor Andrew Cuomo and Mayor Bill de Blasio.
A Harris-packed judiciary would read into the Free Speech Clause a cumbersome and harrowing “hate speech” exception, thus freeing up over-zealous Democrats to criminalize any types of speech—not actual blasphemy or defamation, strictly regulated in common law, but mere “conservative” speech they might deem “offensive.”
A Harris-packed judiciary would immediately stop in its tracks any prospect for revival of a genuine, meaningful, post-Heller, post-McDonald Second Amendment individual right to keep and bear arms—one of the few constitutional areas where near-term conservative hope, following Amy Coney Barrett’s high court confirmation, is not necessarily misplaced.
A Harris-packed judiciary would instantly thwart that most perfervid of legal conservative wishes, involving an all-too-rare doctrinal instance of intellectual consistency on the part of John G. Roberts: a career-defining majority opinion, written by Justice Clarence Thomas, eradicating from our legal edifice once and for all the institutionalized anti-Jewish, anti-Asian, anti-white racism of “affirmative action.”
A Harris-packed judiciary would arouse from the dead the anti-American experiment in Star Chamber reenactment that was the Obama administration’s sordid assault on accused men’s on-campus due process rights in cases of sexual assault.
A Harris-packed judiciary would flout hundreds of years of uninterrupted “plenary power doctrine” case law and aggressively limit—perhaps outright eliminate—statutory limitations on immigration.
A Harris-packed judiciary would do its best to protect Big Tech from the increasingly assertive conservative push against its censorious monopoly power.
A Harris-packed judiciary would halt even the most anodyne of state legislative attempts to protect unborn human life, and would finish the already-commenced judicial project of imbuing our wide-ranging fabric of non-discrimination law with the language of sexual orientation and “gender identity.”
A Harris-packed judiciary would view inevitable conflicts between religious liberty and our sexual orientation/“gender identity”-infused civil rights laws as inherently zero-sum—and guess which side would always win?
A Harris-packed judiciary would embolden the administrative state’s faceless, discriminatory bureaucratic “experts,” further sapping Us the People of the republican self-governance to which our founders pledged their lives, their fortunes, and their sacred honor.
In this most pivotal of elections, perhaps the most important since 1860 itself, nothing short of the preservation of the American way of life itself is at stake. Veer left for intersectional “wokeness”; veer right for Americanism. There is only one choice that might lead to a rejuvenated civic ethos, a renewed and reinvigorated constitutionalism—and only choice that might preclude the de facto destruction of the judicial branch in toto.
The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.