This column by ACRU Policy Board Member Hans von Spakovsky was published March 31, 2016 by Conservative Review.
Many members of the U.S. Senate seem to understand the importance of stopping President Obama’s Supreme Court nominee and allowing voters to decide — through their presidential choice — who will be the ninth justice. But they may not quite realize just how crucial that choice is to preserving basic rights guaranteed by the Bill of Rights and the Constitution. It’s vital that we restore rights that have been lost by erroneous, mistaken, and wrongly decided “interpretations” of those guarantees by errant justices of the U.S. Supreme Court.
We need someone who refuses to rewrite, reinterpret and reimagine that text to fit in with the justice’s own ideology and personal policy preferences, particularly when it comes to social issues.
While many cases before the Court are decided by a clear majority of the justices, including a fairly significant number of unanimous decisions where all nine justices agree, there are very critical cases involving fundamental rights that have been either lost or won by a single vote. That’s why the question of who fills Justice Antonin Scalia’s seat is so important to all Americans who treasure their rights to the “Blessings of Liberty” and believe that we created a government of strictly limited powers.
A brief review of recent decisions shows how imperative it is that we get a justice who applies the plain text of the Constitution and the Bill of Rights based on their original meaning at the time they were written and adopted. We need someone who refuses to rewrite, reinterpret and reimagine that text to fit in with the justice’s own ideology and personal policy preferences, particularly when it comes to social issues.
The Supreme Court today is more powerful than it has ever been in our entire history, and the pressure on justices to conform to the current predilections of our culture and society is enormous. That is why it is also important to have a justice with a steel spine who will not wither in the face of, as Justice Scalia once said, “the contempt of the sophisticated world.”
If someone such as Merrick Garland is confirmed, President Obama will get the solid fifth vote that he, the four liberal justices, the mainstream media, and the activists and advocates of the Left all want. That means we will forfeit fundamental rights we take for granted. We will lose any chance of regaining rights we have already lost, and we will see new “rights” created out of the progressive imaginations of brazen judges.
Here are just a few examples of some of those opinions where one vote made all the difference:
McDonald v. Chicago (2010) and District of Columbia v. Heller (2008) — These two cases vindicated the Second Amendment right of Americans to bear arms. As the dissents make clear, without Justice Scalia’s fifth vote, both cases would have been decided in favor of the virtual bans implemented by Chicago and the District. That would have rendered the Second Amendment a dead letter in the Bill of Rights. Anyone who doubts that with a fifth liberal vote on the Court, these cases will not eventually be overruled either all at once or in bits and pieces in a series of challenges doesn’t understand the progressive view of the law.
Citizens United v. Federal Election Commission (2010) and McCutcheon v. FEC (2014) — Citizens United restored a vital part of the First Amendment, throwing out unconstitutional restrictions on independent political speech and expenditures. Nine months after the January 2010 decision, we had the most competitive congressional races since the 1930s. Overturning this decision is an explicit objective of the institutional Left as well as Democratic candidates and advocates who want to restrict speech they don’t agree with. McCutcheon protected the right to participate in democracy by supporting the candidates you think will help restore America and our Constitution.
Burwell v. Hobby Lobby (2014) and Town of Greece v. Galloway (2014) — Both of these cases ruled in favor of upholding the religious liberty that is a fundamental part of the First Amendment. Five justices in Hobby Lobby prevented the federal government from forcing the Christian owners of a business to provide abortion/contraceptive services in their employee health care plans that violate their religious beliefs. Galloway upheld the right of a town council or other legislative body to start its meetings with a prayer. Christians and people of other faiths are being attacked nationwide in an all-out assault by liberals, who want to restrict their ability to practice their religions in their everyday lives. A fifth vote is crucial to protecting this First Amendment right, as the Little Sisters of the Poor case that is currently before the Court illustrates.
There is little question that with a fifth liberal vote, any voter ID law that got to the Court would not be upheld, destroying the ability of states to implement one of the fundamental requirements for a secure election.
Gonzales v. Carhart (2007) — This case upheld the ban on partial-birth abortions, a particularly gruesome and inhumane procedure, passed by Congress. The dissents make clear that the liberal justices would have allowed such barbarity to continue under Roe v. Wade, the 1973 decision that created a “right” to abortion out of the nonexistent “penumbras” of the Constitution. A fifth vote is still important today in protecting the basic right to “Life, Liberty, and the Pursuit of Happiness;” Texas is before the Court this term battling to preserve its law that imposes minimum safety standards on abortion clinics in Whole Woman’s Health v. Hellerstedt.
Shelby County v. Holder (2013) — Shelby County finally tossed out a long, outmoded provision of the Voting Rights Act that put Southern states in federal receivership, usurping local control over the election process in basic violation of numerous provisions of the Constitution. Progressives want the federal government running elections in this country to give them greater control over the outcomes; overturning Shelby County is a key objective. And while the Supreme Court upheld voter ID in 2008 as constitutional in a 6-to-3 decision, the sixth vote in that case was Justice John Paul Stevens, who has since retired. There is little question that with a fifth liberal vote, any voter ID law that got to the Court would not be upheld, destroying the ability of states to implement one of the fundamental requirements for a secure election.
Finally, there are numerous cases where a fifth vote caused the Court to either rule the wrong way, rewrite a law, or to create a non-existent right. These include:
- Kelo v. New London (2005), which destroyed the limit on eminent domain in the Fifth Amendment;
- Obergefell v. Hodges (2015), which took choice away from voters and state legislators and created a non-existent right to gay marriage, “the furthest extension one can even imagine – of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendment neglect to mention,” according to Justice Scalia.
- NFIB v. Sebelius (2012), which overrode the constitutional limits on the power of Congress to uphold Obamacare;
- Boumediene v. Bush (2008), which overrode federal law and extended constitutional habeas corpus rights to alien terrorists waging war against the United States; and
- Massachusetts v. EPA (2007), in which five justices rewrote federal law to allow the Environmental Protection Agency to regulate carbon dioxide because of the dubious, unproven and highly contentious global warming theory.
All of these cases vividly illustrate that the rule of law and our constitutional form of government are at the edge of a cliff. Whoever fills the vacant seat on the Supreme Court will decide whether we dismantle the Constitution and the Bill of Rights, or whether we preserve, as British Prime Minister William Gladstone said, “the most wonderful work every struck off at a given time by the brain and purpose of man.” Our rights, liberties, and freedoms are at stake.