Will Roe Be Preserved by a Supreme Court Justice's Vanity?
Noah Feldman's Attempt to Subvert Justice Kavanaugh Undermines Our Republic...Approval of Presidential Actions Has Nothing to Do With the Last Election
Harvard Law Professor Noah Feldman had a piece in Bloomberg on the Supreme Court’s upcoming ruling on abortion rights that deserves more attention. The piece isn’t particularly good, but it’s one of the most utterly shameful and morally bankrupt things I’ve ever read.
Feldman concludes that Brent Kavanaugh is the last hope for federally mandated abortion rights. It’s important to be clear on this. Despite the left-wing freak out, if Roe v. Wade and Planned Parenthood v. Casey are overturned, it won’t lead to a national ban on abortion. Rather, it’ll be returned to the states where most state legislatures are not inclined to ban it, and some of those might be overturned by left-wing state judges.
Feldman is mostly on-target with his analysis of why Justice Kavanaugh will be the likely swing vote:
This time, if the Casey case is not to be overturned, the key swing justice will almost certainly be Brett Kavanaugh. Chief Justice John Roberts has already signaled that he is likely to join the court’s three remaining liberals in voting to sustain the Casey precedent. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have indicated they would vote to overturn Roe.
Justice Amy Coney Barrett might conceivably be open to an argument based on precedent. But her jurisprudence, her background, and the influence of the late Justice Antonin Scalia on her judicial outlook all suggest she is willing to reverse Casey and Roe. And it is almost impossible to imagine her casting the deciding vote to uphold Casey by 5 to 4.
I think that Feldman is mostly right on this point. I do think that if there were five Justices ready to vote to overturn Casey, Roberts would probably join with them so that he could write the opinion and also because he’s not a fan of major decision coming down 5-4.
However, Feldman has some interesting ideas on what might motivate Kavanaugh to vote to sustain Casey:
…Kavanaugh is a politically astute and sophisticated judge who wants to matter. The only way for him to become a significant justice on the court as currently configured is to be the swing voter. If he consistently votes with the other conservatives, he becomes just one of five (or six) votes, without the power to control the law.
Feldman compares Kavanaugh to Kennedy and asks us to consider a “simplified psychological model” for Kennedy wherein Kennedy as he alienated conservatives, made liberals fall in love with him. Writes Feldman:
As I saw firsthand in such situations — including in my own class when he visited — the students showed Kennedy active admiration and appreciation. That had everything to do with his emerging liberal jurisprudence. Professors, myself included, wrote articles about him and occasional tributes to his decisions.
Feldman essentially endorses the view (articulated by the late Antonin Scalia) that Kennedy remade American jurisprudence to gain favor with law professors and points out that Kavanaugh worked to create a reasonable view of himself with law professors prior to being appointed and actually taught at Harvard and Yale law before being exiled to the more conservative George Mason University. Writes Feldman:
If he were to become the swing justice, he would probably welcome the praise and even acclamation that Kennedy used to get…
Of course, the left would have to overlook something:
Yet unlike Kennedy, in order to receive praise and approbation for any turn to the center, Kavanaugh would have to overcome the opprobrium that followed his confirmation process. Liberals would have to find a way to praise Kavanaugh notwithstanding their outrage about his alleged conduct when he was 17 and the way he responded to questioning about the episode during his confirmation hearing.
Given how the left managed to ignore the rape, sexual, and sexual harassment against Bill Clinton that were far more credible than anything brought against Justice Kavanaugh, I think the left would have no problem with Feldman’s request.
Then we have this amazing paragraph:
Liberals who want Kavanaugh to take up Kennedy’s mantle need a way to send him the message that if he occupies the center, his jurisprudence will be taken seriously and praised notwithstanding his confirmation hearing.
If only these liberals could find a Harvard law professor to write a piece in a nationally recognized journal implying that if Kavanaugh upholds Casey, he’ll receive the doe-eyed admiring looks of left-wing law students for the rest of his days, and maybe be able to teach law again at an Ivy League school. The cherry on top? The left might even overlook the trumped-up charges they brought forward in bad faith to trash his reputation during his confirmation hearings.
Feldman’s piece is obscene and shameless. It’s written in a lawyerly way with plenty of plausible deniability, but what he’s proposing is dangerous.
Many on the left who attacked former President Trump for undermining our Democracy do a pretty darn good job of undermining it themselves. We need citizens to respect our national institutions for our Republic to survive. But for that to happen, there has to be a sense that our system is working. A Supreme Court Justice writing decisions so that first-year socialist law students look at him as a god stooping down from Olympus to walk among mere mortals isn’t the system working.
The degree to which Anthony Kennedy remade America to please Feldman and the over-privileged kids in his class did active harm to our country. The Obergfell decision legalizing same-sex marriage and overturning all laws against it was the crowning achievement of Kennedy’s career. Yet, of that decision, Chief Justice Roberts said this in the closing words of his dissent:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the oppotunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. (Emphasis Mine.)
Keep in mind that Roberts is the great institutionalist for whom the credibility of the court is everything. If he said the most impactful decision of the Court in four decades lacks any constitutional merit, that says a lot about the Justice who wrote it.
Supreme Court justices weigh many factors for making their decisions. In my opinion, many of these factors should be given far less weight than what the Constitution says. It’s not the Supreme Court Justice’s job to remake society on the basis of a living constitution that allows left-wing justices to see what they want in the law, nor is it the Court’s job to be hyper-sensitive about its reputation and ignore the law in order to avoid making the court controversial as Justice Roberts has done . Yet, you can make reasonable moral arguments for those approaches.
What you can’t make a reasonable argument for is judicial vanity as a basis for decisions that impact people’s lives. Wherever you stand on abortion, the effects of the Court’s rulings will affect real people. Depending on how the issue is viewed, it affects either the right to life of the unborn or a woman’s right to self-autonomy. Applying the law might hurt someone’s interest and that’s unfortunate. However, to inflict that hurt for personal advantage is monstrous.
I’m reminded of the scene in Twelve Angry Men. The initial straw vote had been 11-1 guilty but slowly Juror #8 began to persuade jurors including an immigrant watchmaker and the Jury was deadlocked 6-6. One juror had held baseball tickets and was pushing hard for a quick guilty verdict. However, the tickets became useless due to a rainstorm that canceled the game, and yet the deliberations continued on. He decided he was tired of everyone talking and changed the vote to not guilty leading to a confrontation with a fellow juror:
The watchmaker demanded an answer. “What kind of a man are you?…Who tells you that you have the right like this to play with a man's life?” I feel the same question should be asked of any Supreme Court Justice who thinks he ought to be making important decisions that will impact the lives of millions to please law professors. It should be asked of any law professor who uses his national platform to suggest a Supreme Court Justice betray the country in issuing rulings to serve his own vanity.
Justice Kavanaugh should follow the law and the Constitution in all of his rulings and if the law professors and law school kids don’t like it, oh well. Justices who’ve been out to serve as America’s philosopher-kings have undermined the confidence in our judicial system. The only way to restore that confidence is to call the balls and strikes. While nobody gets gooey-eyed about fair umpires, our Republic won’t last long if the Supreme Court doesn’t play that role.
Trump’s Faults are No Defense of Biden
After 2016, there was a curious trend among Republicans. When President Trump did something horrible, they would invariably bring up Hillary Clinton. Secretary Clinton lost, wasn’t on the ballot and was unlikely to run again. We’re seeing the same thing to an extent with Joe Biden. Anthony Scaramucci, Trump’s communications director for all of ten days who voted for Biden posted this in the midst of the chaos of Biden’s poorly managed withdrawal from Afghanistan:
If Biden is better than Trump, that doesn’t justify Biden’s utter failure in Afghanistan, nor should we grade Presidents based on who they ran against last time.
It apparently needs to be stated that a President’s supporters criticizing him won’t lead to the opponent in the last election ascending to the Presidency. There’s not a magic fairy who will show up and say, “Now you Biden voters turned critics have done it, history is being rewritten so that Trump won. I hope you’re happy.”
You Voted for Evil, Own It
The problem with a lesser of two evils vote isn’t necessarily people voting for the lesser of two evils. It’s not being willing to honestly own their vote.
If you vote for the lesser of two evils, you essentially accept that you’re voting for someone who’s going to harm the country in order to avoid electing someone who's going to do worse things to it. The problem with such a vote is that if you “win,” you’ll bear responsibility for the evil done to the country and the evil that may have been done by the losing candidate is speculative.
In an ideal world, that vote for a lesser of two evils is a one-time deal. You deal with the evil candidate you voted for as best you can to avoid the worst candidate you fear while trying to make sure you never have to face that sort of choice again to ensure that the bad person you elected is in office for as little time as possible. If they step out of line, you’re glad to see the back of them.
However, because people don’t own that, they work to build up their lesser of two evils vote as good. They give the person they voted for an absurd level of benefit of the doubt. They’ll minimize their faults and maximize the positives until you’d think the awful candidate they voted for is George Washington and Abraham Lincoln rolled up into one.
When we exalt unworthy leaders as some great good for the country, we’re signing off on national decline. If, former President Trump was “the greatest President since Reagan” or “the greatest President ever,” or Biden is as wonderful as his most ardent ex-Republican backers insist, there’s no need to actually want anything better.
Maybe it’s too much to ask for people to sit out elections between horrible candidates, or to cast protest votes. I don’t think it’s too much to ask for people to be honest that they’re supporting horrible candidates who will do horrible things because they think the other choice is worse.
What’s really hurt the country isn’t the fact that we’ve elected two awful Presidents in the last two elections from the garbage candidates offered us by two corrupt political parties, but rather that so many are in denial about it. Instead, even reluctant supporters of the last two presidents have overlooked their failures, minimized their serious faults, and imagined virtues that don’t exist in order to feel better about their vote. By doing so, they’ve defined deviancy down for the highest office in the land.