Supreme Court justices return to work next month following a tumultuous last session in which the majority issued some controversial rulings, most notably the overturning of Roe v. Wade.
Liberals in general and Justice Elena Kagan in particular, are upset by the decisions of the conservative majority.
Justice Kagan recently spoke at Northwestern University School of Law in Chicago. She said: “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying to impose personal preferences on a society irrespective of the law, that’s when there’s a problem.”
As conservatives see it, what Kagan objects to is precisely what liberal judges have been doing for more than half a century. Conservatives have seen the court as too often making law from the bench that has little or nothing to do with the Constitution, only what the justices think it ought to say and would have said had they written it.
Former President Barack Obama once revealed the objective of many liberals. During an interview in 2001 he seemed to disparage the Constitution as merely “a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.”
In fact, the Constitution limits the power of the federal government to preserve and protect individual liberty. That’s why the Preamble begins “We the people of the United States” not you the government. The late Justice Antonin Scalia was on point when he said: “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”
Following criticism by then-president Donald Trump about judges who reflect the ideology of the presidents who appoint them, Chief Justice John Roberts issued a rare statement in rebuttal: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
If that were true, there would be no dissents and all judges would have the same view of the Constitution, but clearly in modern times they reflect the view of law of the Democratic presidents who nominate them. That is not always so with Republican presidents. Earl Warren, John Paul Stevens, Harry Blackmun, Warren Burger, Sandra Day O’Connor, David Souter and Anthony Kennedy were all named by Republican presidents and to one degree or another (some more than others) voted in ways, from abortion to same-sex marriage, that delighted Democrats.
So far as I can tell, only one judge named by a modern Democrat did not completely reflect the views of the president who nominated him. That was John F. Kennedy’s pick of Justice Byron White, who was in the 7-2 minority when Roe was decided in 1973.
If there are no Bush, Obama, Clinton, Trump and Biden judges, how else could they be described?
The Founders intended the Supreme Court to be the least powerful of the three branches of government. That would eventually change when Justice John Marshall ascribed to the Court powers the Framers of the Constitution never intended it to have. In Marbury vs. Madison, Marshall placed the judiciary in a position of primary authority on constitutional law and established judicial review as a fundamental principle and the sole responsibility of the Court.
That philosophy would be reflected later by Chief Justice Charles Evans Hughes, who claimed, “We are under a Constitution, but the Constitution is what the judges say it is.”
So, the ideological, political and legal war rages on. Welcome back, justices.