Why Conservative Justices Run Interference for Liberal Causes

The passing of Ruth Bader Ginsburg and the consequent appointment of a third justice to the U.S. Supreme Court by President Donald Trump reignited debate about the impact of jurisprudence on American society. As the debate often revolves around questions of morality and its role in contemporary governance, conservatives cannot boast about their track record. Even if they exert cultural influence over large sections of the public, this is seldom reflected in legislative or judicial outcomes. This disconnect is the result of a political approach on the putative Right that seems to focus on diagnosis — why things are as they are — instead of on self-reflection and a reassessment of the tactics used to arrive at the status quo. What do recent developments in the judicial arena teach us about how we have arrived at this juncture?

Prof. David Flint, former dean of law at the University of Technology Sydney, wrote that the Supreme Court was the American Founding Fathers’ “biggest mistake, a disaster our [Australian] founders followed, even awarding the federal government an untrammeled discretion in choosing judges” (The Spectator, June 27). Flint argues that the Founders should have foreseen the rise of the kritarchy (i.e., rule by the judiciary) in much the same way Alexis de Tocqueville foresaw the potential decay of American democracy. Perhaps Flint is right, but intuition suggests that no matter how a judicial institution is established, politics, like greed and corruption, will make its presence felt. The seismic cultural shifts experienced in recent decades confirm this as we witness the continuing hyper-politicization of the public square. The problem of institutional collapse lies elsewhere, and the Founders of both nations can be forgiven for what seems, in retrospect, to be no more than the sin of gallant naïveté.

The formal structure of an institution, its constitutional order and the framework of rules and regulations according to which it operates, is not enough to guarantee its integrity. To believe otherwise is to indulge in a dangerous utopianism that ignores the primacy of an institution’s animating force: the people who constitute it, their attitudes and dispositions, and their culture, which is never a rigid force and inevitably changes the way organizations operate over time. The cultural impact of a judicial system does not, therefore, depend on whether judges are elected or appointed but on the cultural milieu in which its jurisprudence is shaped. Just as the milieu changes, so does its jurisprudence. Much like the human-resource departments in both the private and public sectors today, fill an organization with revolutionaries and it will reflect their values and act according to their imperatives — sometimes in a manner hostile to the organization’s original purpose.

Collapse is evident when those dedicated to preservation or renewal appear to strike at the foundations of the social order or actively fail to protect its integrity. Consider President Trump’s second appointee, Brett Kavanaugh, who, in his first act as an associate justice of the Supreme Court in 2018, sided with his liberal colleagues in refusing to hear an argument in support of a state law that purported to prevent Planned Parenthood, a billion-dollar corporation dedicated to the promotion of abortion, from receiving additional taxpayer funds. Catholic commentator Michael Warren Davis put it delicately when he said this development “doesn’t bode well” for the pro-life cause (theDoveTV, Dec. 17, 2018). Kavanaugh, Davis said, “didn’t even want to hear the case…. He is invincibly certain that Planned Parenthood is entitled to taxpayer money.”