In recent weeks, the Supreme Court has handed down one unanimous non-ideological decision after another, with the big kahuna coming on Thursday. Religious freedom advocates hoped for a win in Fulton v. Philadelphia, which involved the hot-button issue of religious organization’s rights to allegedly “discriminate” against LGBT people. Many were flabbergasted, however, when the Court ruled unanimously in favor of the adoption agency. Similarly, the Supreme Court upheld Obamacare, after Democrats spent weeks insisting that Amy Coney Barrett would destroy it (she voted to uphold it).
As George Washington University law professor Jonathan Turley explained, these decisions are rather “inconvenient” for President Joe Biden’s narrative that the Court is “out of whack.”
After President Donald Trump succeeded in adding three originalist justices to the Supreme Court, Democrats and leftists have hyperventilated about the threat of an ideologically conservative activist Court. For example, Professor Kent Greenfield argued that “the Supreme Court has become too partisan and unbalanced to trust it with deciding the most important issues of our day.”
It seems the Left, knowing what leftist activist judges had done on the Supreme Court for decades, feared that conservatives would reverse course, writing opinions from whole cloth just to advance conservative ideas and force their agenda down Americans’ throats the same way leftist judges had dictated the legality of baby-killing from on high.
While the most partisan among us might relish that possibility, conservatives should be proud that the Left’s hyperventilating fears are completely baseless. Originalism is about returning to a plain reading of the Constitution and the laws of the United States, not twisting the law to fit partisan desires.
Originalism entails returning to the rule of law. While it should mean a reversal of the egregious cases where justices unilaterally amended the Constitution by “finding” “penumbras and emanations” from the text, it emphatically does not mean that Republicans are going to get their own Roe v. Wade (1973) or Obergefell v. Hodges (2015).
In Roe v. Wade, the Supreme Court reinterpreted the 14th Amendment as a right to abortion. Ironically, at the time the 14th Amendment was being ratified, abortion laws were being tightened, not loosened. Furthermore, the plain text of that amendment — which states that no state can “deprive any person of life, liberty, or property, without due process of law” — not only fails to mention abortion, but could be used as an argument to defend the lives of unborn babies.
To achieve this ruling, the Court stretched the “penumbras of the Bill of Rights” to include a right to privacy — a legacy of the 1965 contraception case Griswold v. Connecticut — and extended that into a right to abortion.
Similarly, in Obergefell v. Hodges (2015), the Supreme Court case legalizing same-sex marriage, Justice Anthony Kennedy wrote a “right to dignity” into the Constitution, twisting the Constitution which had long sanctioned laws against homosexual practice into a document enshrining a right to same-sex marriage.
Both of these decisions — Roe and Obergefell — forced legal changes on the states, arguably violating the 10th Amendment (“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).
To be fair to the “living Constitution” thinkers, the 9th Amendment does include a broad defense of rights “retained by the people” which cannot be infringed by rights enumerated in the Constitution. This amendment cannot have been intended as a blank check for writing new rights into the Constitution, however.
The biggest problem with the “living Constitution” is Article V of the original document. The founders understood that the Constitution may need to be altered from time to time, and so they wrote into the actual document a process to alter it. Imagine that!
If the founders intended the Constitution to be altered willy nilly by the Supreme Court, they would never have done this.
While millions of Americans approve of both Roe and Obergefell, their popularity does not make them good Supreme Court decisions. Reversing them would also not automatically ban abortion or same-sex marriage — it would merely allow the states to decide for themselves. The majority of the states would almost certainly keep both practices legal.
Biden and his allies on the Left fear an originalist Court because it means the Supreme Court will no longer force their agenda on the American people. In order to prevent a more restrained Court, they engage in fear mongering about the horrible results of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Yet, when Gorsuch, Kavanaugh, and Barrett make decisions on the Court, they often align with their fellow justices — even the three liberals on the Court.
The Supreme Court issues unanimous rulings far more often than Americans think. On hot-button issues that generate the most media coverage, the Court often rules 5-4 or 6-3, but most cases pass under the radar. It is remarkable, however, that the Court decided unanimously in favor of the Catholic adoption agency in Fulton v. Philadelphia.
Democrats have doubled down on LGBT activism, demonizing Republicans for even so much as defending a baker’s right to refuse to craft custom cakes to celebrate an event that deeply offends his religious beliefs. In fact, the Democrats’ much-vaunted “Equality Act” explicitly suspends the religious freedom protections of a law that passed almost unanimously in 1993.
Yet despite Democrats’ groupthink on LGBT issues, the three Democrat-appointed justices on the Supreme Court agreed with the originalists in Fulton v. Philadelphia, a case where most Democrats would side against the adoption agency.
Similarly, as PJ Media’s Bryan Preston pointed out, the 9-0 case Caniglia vs. Strom (2021) revealed just how “out of whack” Biden’s own view of the law is. The Supreme Court unanimously rejected Biden’s claim that police can search Americans’ homes for firearms — and confiscate them — without a warrant.
The Court also unanimously rejected Sen. Elizabeth Warren’s (D-Mass.) attempted subversion of immigration law.
These rulings may frustrate far-left activist Democrats who don’t care about religious freedom or the plain text of the Constitution, but they also don’t represent a right-wing subversion of the law on the order of Roe v. Wade or Obergefell, either.
As it turns out, the Supreme Court is more than up to the challenge of deciding difficult legal challenges without partisanship ripping it to shreds. Biden’s attempts to pack the Supreme Court reveal far more about him than they do about Trump’s originalist justices.