BOVARD: Conservatives’ Over-Reliance On Judges Stems From Their Failure To Legislate

(Mandel Ngan/AFP via Getty Images)

Rachel Bovard Contributor
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On Tuesday, Wednesday and some Monday mornings in May and June, most of D.C. grinds to a halt. Political professionals all over the city, including the ones in Congress, feverishly hit refresh on the Supreme Court’s website, waiting for the high court to issue its opinions, decreeing to our self-government how we will be ruled.

The Founders may have envisioned the legislature as the most powerful of the three branches — legislative, judicial and executive — but more than two centuries hence, it is the judiciary that is tasked with deciding the profound questions of our social order: immigration policy, questions of human dignity and sanctity of life, of marriage, religious liberty and civil rights.

These are fundamentally questions of our culture and self-governance, the answers to which define the parameters of our social order: how we, as a community of souls, will live together. They are decisions of “we” designed to be made not by walled off philosopher kings, but in the assemblies and rabble of open deliberation, meted out among voices elected to vigorously argue, dissent, compromise and, eventually, to settle on a collectively decided, representatively determined outcome.

Not all will agree, but all will have been heard. And, crucially, the people upon whom those decisions are imposed can register their agreement or disagreement with the decision makers at the ballot box.

That was the design, anyway. That we find ourselves looking to an unelected and lifetime appointed Supreme Court to answer these questions for us has been by choice.

For years, the legislative branch has been slicing away its constitutional powers, handing them over to this or that executive branch agency, or to the president himself. Lately, however, this has also involved turning over the raison d’etre of the legislature — that of policy making — to the courts. What was heretofore an implicit choice became an explicit one during the recent years of unified Republican government, and continued when Republicans maintained control of the Senate and the White House.

In 2018, then-Majority Leader Mitch McConnell and then President Donald Trump made an intentional choice to spend the Senate’s time confirming as many judges as possible. McConnell even eliminated the last vestiges of the judicial filibuster to ensure an unencumbered elevation to the Supreme Court for Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Judicial confirmations have always played an important role as part of the Senate’s business, but prioritizing their processing over and above legislative efforts recast judicial confirmations from a matter of business to a matter of political strategy and a guarantor of policy outcomes. In other words, it was a clear message that the legislature is not going to secure Republican legislative victories; the judges are.

This has deep implications for the nature of representative government, but it also requires that we the people place a heck of a lot of faith in the judges themselves. It has created the expectation that a Republican-appointed judge or justice will provide Republican-oriented policy outcomes in every scenario. The stakes get even higher, as they are the first and last line of defense. The legislature has made it clear that they have no plans to act.

Sometimes it works, but sometimes it doesn’t. Last June, Trump-appointed Justice Neil Gorsuch authored the majority opinion in Bostock v. Clayton County, an opinion remarkable in its awfulness — not only for legally upending traditional and scientific views on gender, but for an application of textualism that is bizarrely literalist. Notably, the legislature responded to the ruling, which they could have acted to undo, with a collective shrug, seemingly relieved that their plan was working, and someone else was getting to decide the hard questions.

This summer, conservatives were let down again by the failure of Trump-appointed Justices Brett Kavanaugh and Amy Coney Barrett to vote in favor of allowing the Court to hear Arlene’s Flowers v. Washington, a case involving key questions of religious liberty. Don’t expect the legislature to take that one up, either.

But should this surprise us? There is another layer of added irony here, in that a conservative political strategy which pins policy dreams on the judiciary is flanked by a conservative legal movement which advises a restrained judicial vetting process. Unlike Democrats, which ask specific questions about how their nominees intend to rule on critical areas of law and controversial cultural issues, Republicans demur, rightly hoping their judges will rule on the law, rather than be led by political biases regarding the issue at hand.

But expecting judges to rule on matters of policy and politics while simultaneously refusing to vet them for their beliefs in those matters is both contradictory and unsustainable. A party cannot on one hand expect judges to issue the correct policy decrees while on the other hand studiously fail to take any steps to guarantee that outcome.

Ultimately, conservative frustration with judicial outcomes is really just misplaced frustration with the legislature failing to live up to its envisioned role in answering the key questions of policy that govern our social order. The answer to judicial disappointment is to appoint better judges, yes. But it is actually for the legislature to do the work of lawmaking themselves.

Rachel Bovard is the senior director of policy at the Conservative Partnership Institute