Roe and 80,000 votes

Elizabeth Warren managed to get back in the news recently in the way she usually does — by proposing spectacularly bad ideas, accompanied by incoherent supporting arguments.

The spectacularly bad idea in this case, albeit one she is hardly alone in recommending in her party, is for Congress to

“use its constitutional authority to expand the number of justices on the Supreme Court,” as a means of restoring “America’s faith in an independent judiciary committed to the rule of law.”

Within this context, her advocacy of court-packing (which she claims in the same op-ed that she isn’t advocating) matters less for its substance and awful implications than as an indicator of how what passes for jurisprudence on the left has come to have virtually nothing to do with jurisprudence, traditionally understood, as well as the extent to which concepts like “independent judiciary” and “rule of law” no longer mean in such precincts what they mean in others.

The primary complaint of Warren is not that the current justices of the court have become corrupt (in which case the impeachment mechanism would be the proper remedy) or lack sufficient legal credentials (they obviously don’t) or have conspicuously abused the Constitution in a particular ruling; rather, it is that too many of them are “conservative,” defined as those who advocate reading the Constitution according to what it says rather than what Warren wants it to say.

That won’t do for Democrats who want previous court victories preserved (Roe v. Wade) and more such victories forthcoming via justices who endorse the “living Constitution,” a euphemism for creative “updating” of the document in a leftward direction from the bench rather than through the amendment process.

In essence, Warren’s argument is that the balance on the court has tilted too far to one side, meaning the conservative side, which is the wrong side, and this shouldn’t be allowed to happen, even if it happens through legal, constitutional processes and as a consequence of the outcome of elections.

Her reasoning, such that it is, therefore contains the curious notion that creative constitutional interpretation in the service of a particular political agenda (hers) is legitimate but strict constructionist interpretations of constitutional provisions aren’t, because the left is politically legitimate and the right is not.

In Warren’s wacky world, legitimacy flows not from legal credentials or faithful, disinterested interpretation of constitutional provisions but possession of the right ideological orientation.

It is acceptable in such a world to make things up that have little relation to constitutional text so long as it produces the “correct” (meaning left) results, and unacceptable to hew to constitutional text if doing so produces results the left dislikes.

Warren thus goes further than the traditional liberal line that permits motivated reasoning in rulings in pursuit of “social justice” to claim that it is the only kind of reasoning which should be permitted.

One also senses that the embrace of court-packing by Warren and other Democrats is motivated by more than simply preserving the crown jewel of liberal judicial activism (Roe) to reflect the way liberal hopes were raised by the sudden death of Antonin Scalia, only to be so decisively dashed by a series of surprising events thereafter.

Lest those claiming to be worried about balance on the court forget, the passing of the conservative wing’s leader (Scalia) in 2016 abruptly offered the Democrats the opportunity to shift that balance from 4-4-1, where it had precariously but persistently stood for a number of decades (with Anthony Kennedy playing the “swing vote” role, at least on cases most dear to liberal hearts, in a manner previously played by Lewis Powell and Sandra Day O’Connor), to 5-3-1 in liberal favor.

And that even the thwarting of that opportunity by Mitch McConnell, in obviously partisan but nonetheless constitutional fashion, appeared to be only temporary because Hillary Clinton was expected to win the presidency and renominate Merrick Garland or another reliably left-leaning figure.

But then came Donald Trump and that cumulative differential of 80,000 votes in Wisconsin, Michigan, and Pennsylvania, and from that Justice Neil Gorsuch (which, as a replacement for Scalia on the conservative side, prevented the desired leftward shift), Justice Brett Kavanaugh (a liberal catastrophe because he was a conservative replacement for the retiring Kennedy), and, finally, with the death of the most liberal justice (Ruth Bader Ginsburg) and additional partisan but entirely constitutional maneuvering by McConnell, conservative Justice Amy Coney Barrett.

So that is where we now find ourselves, with Trump having had the unusual opportunity to reshape the court in a conservative direction in a single term with three appointments. The 5-3-1 or even better edge that Democrats had anticipated by this point in time has instead become 6-3 conservative, hence the clear threat to Roe and Warren’s demand for at least four more (liberal) judges.

The party that claims to be defending democracy against persistent right-wing threats has also been the party that for decades has counted on using the federal courts to achieve policy victories that the democratic process wouldn’t deliver.

Now denied that mechanism as a result of democracy, it’s time to change the rules in order to reclaim it.