The dangers of moving the goalposts
When you can’t win playing by the rules, change the rules. That is the strategy driving the Left which has been unable to craft anything close to a political majority in support of its goal of bringing outright socialism to America.
The latest example of this strategy is a stunning brief filed by Sheldon Whitehouse, the ultra-Left wing U.S. Senator from Rhode Island, intervening in a case involving a New York City gun control law pending before the Supreme Court of the United States.
Rather than argue the merits (or lack thereof) in the law, Whitehouse took the opportunity to threaten the Supreme Court Justices saying: “The Supreme Court is not well ... perhaps the court can heal itself before the public demands it be restructured in order to reduce the influence of politics.”
Let’s take a close look at that statement. First, you know the Left is going to inject politics into a policy discussion when the say they want to “reduce the influence of politics.” To them their positions reflect eternal truth while anyone who disagrees is playing politics. Whitehouse, of course, immediately devolved into politics pleading for more gun control.
Whitehorse’s statement contained a not so subtle threat to the justices: do what we want or we will take away your power. Unnerved by President Trump’s appointment of two constitutionalist justices the Left is seeking to dilute their influence by packing the Supreme Court with additional appointees, presumably by a future Democratic president.
This is not a new strategy. President Franklin Roosevelt proposed a “court packing” bill back in 1937 because the justices had struck down a number of his New Deal proposals as unconstitutional. Republicans and principled Democrats (they existed back then) balked at the idea and it subsequently floundered in congress.
In addition to being a brazen breach of separation of power ethics, Senator Whitehouse’s threat is built upon a false premise. The two justices appointed by President Trump, Neil Gorsuch and Brett Kavanaugh, have exhibited an independent streak and on a number of occasions one or the other have joined with the court’s liberal wing to issue majority opinions strikingly at odds with conservative orthodoxy.
During the Obama era, Chief Justice John Roberts joined with the liberal justices to uphold the constitutionality of the Affordable Care Act. In fact socalled conservative justices have sided far more often with liberal justices who more consistently vote their ideology than do those on the right.
The desire by the Left to change the rules when they don’t win can be seen elsewhere as well. For example, stung by President Trump’s 2016 victory in the Electoral College they have been pushing so called “national popular vote laws” in an effort to subvert the constitutional construct designed to ensure that larger states don’t render the votes of smaller state residents irrelevant.
Here in Penn’s Woods the Pennsylvania Supreme Court has fully bought into the change the rules strategy. In 2011 a bipartisan majority of lawmakers enacted a new congressional district map which passed muster with the Supreme Court as it was constituted at the time. However, in 2015 labor unions purchased a majority of Justices on the high court which then decided the map was unconstitutionally gerrymandered.
Democrats, frustrated by their inability to win a congressional majority undertook a number of state-by-state challenges to district maps, and the union-owned Pennsylvania Supreme Court proved to be fertile ground. The GOP held a lopsided majority of state congressional seats, so the supremes hired a liberal college professor from California to design a new map, which it ordered into effect. The re-gerrymandered map worked, and wiped out the state delegation’s Republican majority. The strategy was effective nationwide as well as Democrats took majority control of the lower chamber.
Despite their Orwellian claims to the contrary, judicial activism continues to remain the exclusive domain of the Left. Constitutional structures such as the Electoral College, and the separation of powers, have served our nation well for over 200 years.
To change them in the heat of transitory political conditions and policy battles would be to tamper with the very foundations of our Democracy and we do so at our peril.