The following is adapted from a lecture delivered on February 28, 2022, at the Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship on Hillsdale’s Washington, D.C. campus, as part of the AWC Family Foundation Lecture Series.
For several years prior to 2020, violent crime in America’s major cities was on the decline. But since the riots that summer following the death of George Floyd, it is heading in the opposite direction.
Murders nationwide in 2020 rose a stunning 29.4 percent over the previous year, the largest annual increase since the FBI began tracking that data in the 1960s. The number of murders in Chicago climbed even more sharply, rising 55 percent. It was as if a switch had been flipped. At least ten major U.S. cities hit new murder highs in 2021, but Chicago led the way with 797, the city’s highest number in 25 years.
Chicago’s violent crime epidemic is not limited to murder. The city’s 3,561 shooting incidents in 2021 were up 63 percent over 2019. Expressway shootings in Chicago-Cook County rose even more dramatically, from 51 in 2019 to 130 in 2020 to 273 in 2021. These expressway shootings pushed Chicago’s actual 2021 murder total north of 800.
Expressway killings aren’t counted in the official city numbers because expressways are under state jurisdiction. But try telling that to Chicagoans. “It’s almost like a modern, 21st century form of dueling,” said Illinois State Police Director Brendan Kelly. “[People get into fights with] each other on social media, they threaten one another and they say . . . ‘Let’s take this out to the expressway.’”
One of Chicago’s expressway murder victims was a dearly loved wife, mother, grandmother, and special education teacher named Denise Huguelet. Sixty-seven years old, she was being driven home from a White Sox game last summer when she became collateral damage in a shootout on the Dan Ryan Expressway.
Then there are the carjackings, 1,836 of them in Chicago in 2021—a 204 percent increase over 2019. One victim was a Democratic state senator. Her husband had a gun and returned fire. In another incident, a Cook County judge had to pull her three-year-old son to safety before the carjackers drove off.
Will McGee was 18 and looking forward to joining the military after graduating from Excel Academy on the South Side, where he’d been voted homecoming king. He had saved up to buy a new Chevy Equinox and was behind the wheel when he was carjacked last November. He surrendered the vehicle and tried to run away but was shot dead in the back. The SUV was found abandoned shortly afterward.
Gangs have stoked the carnage with a sub-genre of hip hop music called “Chicago Drill.” Rival gangs call each other out in Chicago Drill raps, and bullets often fly as a result. Chicago’s gang world used to be dominated by a small handful of gang leaders, and homicides were usually tied to drugs and territorial conflicts. But as the federal government took down the older generation of leaders, gangs fractured and multiplied on a block-by-block level. Today’s gangs are run by young knuckleheads who throw down angry words on little screens and use shooters who in some cases have barely reached puberty and struggle to hold and aim their weapons.
The fact that violent crime increasingly leads to the deaths of innocent citizens is a major reason for the exodus of Chicago’s black population, down one-third since 1980. It also explains why increasing numbers from the surrounding suburbs—and tourists in general—are shunning the city.
So there’s violent crime aplenty in Chicago. But punishment? Not so much.
The Chicago Sun-Times reported that in 2020, police made carjacking arrests in only eleven percent of cases. And Cook County prosecutors working for State’s Attorney Kim Foxx approved felony charges in less than half of that eleven percent.
Chicago reported a 53 percent rate of “clearing” or solving murders in 2019. But that number was inflated. A misguiding technical term was applied to nearly six in ten “cleared” murders: “cleared, closed exceptionally.” The term “closed exceptionally” means that a murder has been declared solved, but without the filing of criminal charges—usually because prosecutors decide police evidence is insufficient.
Too many Chicagoans are dead due in part to a broken criminal justice system.
Denny Zheng was 24. He’d recently completed a master’s degree in statistics at the University of Chicago. Last November, as he walked near the campus in Hyde Park, he was robbed of his laptop computer and cell phone, then shot dead. The charged suspect was 18 years old and on probation for aggravated carjacking and armed robbery. Before his arrest, he sold the laptop and phone for $100.
Ella French was 29 and a Chicago police officer. She was killed during a traffic stop last August. The charged suspect was on probation for felony robbery.
In July, 73-year-old Keith Cooper, a grandfather and a veteran, died of a heart attack after being punched in the head during an attempted carjacking in Hyde Park. The charged suspect, by then an 18-year-old adult, had been on probation for juvenile carjacking.
In December 2020, retired Chicago firefighter Dwain Williams, 65, was slain during a carjacking attempt by a group of young men. One had five juvenile convictions and four pending cases, including one for an alleged home invasion and kidnapping. Another was out on bail before trial for stolen vehicle possession and aggravated unlawful use of a weapon.
In January of this year, eight-year-old Melissa Ortega was shopping with her mother on 26th Street, the main drag of Chicago’s Little Village neighborhood. She was shot and killed in a gang-related shooting gone awry. The charged suspect was a 16-year-old on probation for three armed carjackings within the previous year.
Easy probation has become a license to kill. Why won’t judges properly assess risk, even in juvenile cases? The answer is all too clear: criminal justice has morphed into what advocates on the bench and in prosecutors’ offices describe as “social justice.” But where is the justice for the victims and their families? The rush to empty out jails and prisons is costing lives.
The movement for bail reform only compounds the problem. Since 2017, under Cook County Chief Judge Timothy Evans’ direction, suspects charged with felony gun violations and overtly violent felonies are often released on low-cash or no-cash bail.
Evans has repeatedly argued that only a small percentage of released felony suspects have been charged again before trial. But he has not always been trustworthy in his use of data. In 2020, he released a report claiming there was no significant increase in crime after bail reform was enacted in Chicago. Only 147 felony defendants released before trial on low-cash or no-cash bail within the previous year and a quarter, he asserted, had been charged with new felony offenses. But the actual number was at least four times higher than that according to a Chicago Tribune analysis, which it was able to complete only after winning a public records appeal to the Illinois Supreme Court. Evans’ office had failed to count at least six different felony crime categories as felonies.
What can be done to address Chicago’s violent crime epidemic? Here are some ideas for legal reform suggested by the cases cited above:
Unfortunately, the last two recommendations would require action by the Illinois Legislature, which has been under one-party (Democratic) rule for decades and has shown no serious interest in stopping crime.
Chicago should also employ smarter policing tactics, which would need to go hand-in-hand with stronger political support for the police. Residents of black neighborhoods say they want better police and more of them—and contrary to what too many Chicago politicians seem to believe, improved police accountability isn’t incompatible with supporting police in their efforts to make the streets safer.
One way to improve policing is by returning to regular foot patrols in high-crime districts. In February 2013, under Mayor Rahm Emanuel and Police Chief Garry McCarthy, Chicago launched a foot patrol program called Operation Impact in the city’s 20 highest-crime hot zones. After 14 months, murders in those zones dropped by almost half, shootings by 43 percent, and overall crime by 25 percent. Police said targeted gang and narcotics interventions may also have helped.
But Operation Impact didn’t last. Today such a program might require three or four cops to walk a beat together, with back-up in nearby cars. This in turn would require more police funding, not defunding, and real support for the police by Chicago’s mayor and city council.
Chicago politicians, like city politicians elsewhere, too often blame “gun violence” for the city’s murder epidemic, as if guns shoot themselves. Chicago police, to their credit, took more than 12,000 illegal guns off the streets in 2021 alone. But the supply is endless, and now includes “ghost guns”—guns without serial numbers made from mail-order parts. The vast majority of Chicago residents are law-abiding, and they should be able to defend themselves with legally obtained firearms.
In addition to legal reforms and improved policing, it’s time to stop making excuses for what one brave Chicago alderman, Ray Lopez, has called “the borderline collapse of the family unit in many of our neighborhoods” and the effects of “generational gang life.” Political leaders need to stop walking on eggshells when it comes to talking about the breakdown of the nuclear family in low-income black communities. Young men need fathers—without fathers they flounder.
According to City of Chicago data, in every year from 1999 to 2009, more than 80 percent of all black women who gave birth were single. Among Latinos, that figure rose from 45 to 55 percent during that period, while for whites and Asians the numbers were dramatically lower.
More broken homes are directly correlated with more violent crime. Annual Chicago Police Department reports show that the neighborhoods with the highest murder rates are the same neighborhoods in which births to single mothers are highest. Among children raised in households headed by two biological parents, regardless of race, studies find greater educational attainment, higher adult income, and lower rates of incarceration.
Failing public schools also contribute to Chicago’s violent crime crisis. Fewer than two out of ten black fourth- and eighth-graders achieve the “proficient” level in reading and math on the National Assessment of Educational Progress. High school SAT results are equally dismal.
A bright spot worth mentioning is the achievements being made by public charter schools. A University of Chicago study found that students at public charter high schools had better attendance and test scores than those at non-charter public high schools. More was required of them to advance to the next grade and to graduate. Teachers reported a higher level of trust and collaboration with their colleagues and a greater willingness to innovate. Classes were more academically demanding.
Sadly, however, the Chicago Teachers Union has used its broad powers to strike—powers granted by state lawmakers—to restrict competition, insisting on a charter school growth cap in their last two contracts. When the current cap expires in 2024, it should not be renewed by Chicago’s mayor and school board.
What Chicago ultimately needs are school vouchers, which must be enacted by state legislation—an unlikely prospect—or by a voter-approved constitutional amendment.
Another means of curtailing violence in Chicago is through poverty remediation and neighborhood economic development—which doesn’t simply mean government dispensations.
In Woodlawn, at 63rd and Martin Luther King Jr., is a fast-food dive where men step up to passing cars and collect cash in return for drugs. Walking south on MLK, I passed a woman with a thousand-yard glassy-eyed stare. Other pedestrians were loping around in little circles, looking lost.
Investment in such neighborhoods is a wager, and no one likes long odds. But just down the street on MLK, Pastor Corey Brooks is placing his bet. Brooks heads New Beginnings Church and its non-profit arm, Project H.O.O.D., which offers parenting classes, remote learning co-ops, online financial education lessons, and a popular construction industry training program. Eighteen black female electricians graduated from a certification course last summer. Brooks is in the midst of raising millions of dollars for a state-of-the-art community center equipped for career and technical training.
Trade skills are important, but so is meeting workplace expectations. On Halloween in 2020, Brooks’ church organized a Harvest Party for parents and children. I came across Brooks there counseling an agitated young man who was in the Project H.O.O.D. construction training program. The man was upset because his Latino job site supervisor confronted him about being late to work and not filling out timecards. It was a heated conversation, but Brooks held his ground, telling the young man that to keep a good construction job you’ve got to be on time and do what the boss says. He also told him he’d better get used to Latinos, because they’re skilled in the building trades.
In November 2020, I visited Chicago’s Roseland district, southeast of Woodlawn. The same Michigan Avenue that’s home to the Magnificent Mile shopping district downtown looks a lot different on the city’s South Side. Much of it looks like a war-torn city in Syria.
Dutch settlers in the 1840s referred to Roseland as High Prairie. In the 1850s it became an important stop on the Underground Railroad for slaves escaping to freedom in Canada. As recently as the early 1970s, Michigan Ave. in Roseland was a robust marketplace with distinctive architecture. Subsequently, however, as gang violence increased, the area came to be known as the Wild One Hundreds. During my visit, nearly every building on Michigan Ave. was trashed or empty.
Antoine Dobine lives in neighboring West Pullman. Interviewed by NBC News, he recalled that Roseland was
a beautiful area in the 70s. It was like a family atmosphere. But . . . a lot of families left, and a lot of families moved in and didn’t have those same values. . . . We need all these parents who got these gun toters and gangbangers on their couches . . . to say, “Hey, child, get out of my house and put that gun down.” . . . I know there’s people living in these homes that’s sick and tired of things going on like I’m sick and tired, [but they] won’t . . . speak up.
Political change in Chicago is essential. Year after year, two-thirds of the city’s registered voters fail to vote in local elections. The main group that does vote consistently is a group that benefits greatly from the status quo: public employee union members. Voting is suppressed by the fact that local elections are held in odd years during cold winter months, but until the majority of citizens—who are being harmed by the status quo—seizes control of their own destiny, little will change.
Change at the family and individual levels is equally essential. Malik Tiger made such a change, and in doing so came to understand the true meaning of self-determination. He grew up in Roseland, and his father served ten years in jail. By age 17, Malik was charged in his first gun case, and a spiraling pattern of crime, gunshot wounds, and jail time followed. Then he decided he had had enough.
“I feel like at the end of the day, change has to come from within. You have to get tired,” Malik said. “You have to look at yourself in the mirror and be disgusted with who you are.” Through a violence prevention program, he turned things around and landed a job at the Greater Chicago Food Depository.
“I just had a newborn son,” Malik said. “I have my own apartment. I’m doing good for myself.” Bumping into the judge who sentenced him in 2013 on juvenile gun charges, he received encouragement for the changes he’d made. “The judge looked at me as an individual, as a strong black man who was trying to go forward and trying to do the right thing to take care of his family.”
The Left today has badly misappropriated the word “equity,” using it to mean equality of outcome—something to be achieved through affirmative action and economic redistribution. But real equity, in the old sense, cannot be given. Real equity requires the old fashioned virtues. It is inextricable from full ownership of your own course in life.
In a ghoulish turn of events, progressive legal activists are invoking Justice Ruth Bader Ginsburg‘s legacy in an attempt to persuade Justice Stephen Breyer to step down from the United States Supreme Court.
Speaking to CBS News about the 82-year-old Breyer, Demand Justice’s Brian Fallon said, “We want to avoid a repeat of the unfortunate situation that occurred last fall,” when Ginsburg—a liberal icon—died while a Republican was in the White House and a GOP-controlled Senate was able to confirm her replacement.
Justices are appointed to the Supreme Court for terms ending only upon their death, resignation or removal. The Founding Fathers wrote this provision into the Constitution to insulate the Court and its members from political pressure.
Ginsburg’s death after a long, valiant struggle with cancer produced a rare moment of bipartisanship in the nation’s capital. Republicans and Democrats alike praised the justice for her devotion to her work, her tremendous success as an attorney who championed equality under the law and her longtime friendship with the late Justice Antonin Scalia, which proved that people with wildly divergent views could work together and be genuine friends.
That era of good feeling shattered shortly after President Joe Biden entered the White House. Progressives immediately started whispering about Breyer, a stalwart defender of the Court’s independence, needing to step down.
“There are a lot of people that were filled with regret after [Ginsburg’s] passing because she did not take the opportunity to step down when Barack Obama was president,” Fallon said on CBS News. He faulted Ginsburg for refusing to resign after the severity of her eventually terminal illness became known, which would have allowed the then-president to replace her with someone even further to the left. “We don’t want to have that situation reprise itself this time with Justice Breyer who is—the Court’s oldest justice,” Fallon told the CBS anchor.
As the Court has moved rightward, it has come under increased scrutiny from liberals and progressives who once accepted its decisions as binding and unassailable, at least when they liked the outcome. Nowadays, those progressives are enthralled with the idea that Congress can overturn rulings they consider incorrect, such as Citizens United v. FEC.
Rhode Island Democrat Sheldon Whitehouse has been especially hard on the justices. Recently he attempted to use his Senate subcommittee to demonstrate the influence of the “dark money” Citizens United set loose. He demanded that justices share their time and travel records so their critics could uncover any unsavory relationships between them and what Teddy Roosevelt called the “malefactors of great wealth.”
There’s an argument to be made that Supreme Court justices stricken with severe illnesses should step down. The Court faced a crisis after Justice William O. Douglass suffered a debilitating stroke and refused to resign even though his colleagues said he could no longer fulfill his duties. Breyer, by contrast, seems to be in the best of health and does not show signs of impairment or loss of enthusiasm for the job. He has no apparent reason to retire unless he himself has decided it’s time.
What progressives are doing now is unseemly and ugly. Were the shoe on the other foot, they might call it ageist and discriminatory. Some will, no doubt, suggest that conservatives would do the same. But liberals tend to advance their agenda and their candidates for elected office and the federal bench by saying they are better. They themselves ask to be held to higher standards.
The jockeying over federal judges didn’t begin with Trump. It started back in the 1980s when Ted Kennedy waded into the slime and ooze on a mission to destroy Robert Bork’s reputation along with his nomination to the highest Court in the land. Judging by what progressives are now saying about Justice Breyer, they’re still stuck in the muck.
The Democrats are returning to their roots during Joe Biden‘s presidency. The Clintonian concession that the “era of big government” was over has been nullified. The bigger-is-better approach to public policy fueled by “tax and spend” is back.
Biden was portrayed as the moderate candidate in the last election, so this switch may seem odd. Those who follow politics closely know, however, that was spin. He’s only “middle of the road” because the party has moved so far left since he first achieved national prominence.
Over his first hundred days, Biden has embarked on an ambitious program that will lead to a radical change in the role, scope and size of government.
In recent weeks, the president has announced the creation of a commission to study the makeup of the federal judiciary, as he promised he would during the campaign. Former president Donald Trump‘s achievements in remaking the third branch of government—ably supported by Senate Republican Leader Mitch McConnell—might be Trump’s most significant achievement, making it the thing that irks progressives the most. Rather than waiting on Father Time and the Grim Reaper to do their work so they may make major changes to the Supreme Court‘s makeup, congressional Democrats have introduced legislation increasing the number of justices from nine to 13.
The last time Biden took a position on the idea, he denounced it as “boneheaded.” That was back during the Reagan-Bush years. Challenged on the issue by Trump in 2020, he punted to the idea of a commission rather than answer “yes” or “no” to the question.
The dodge worked, and reminded us all what a skilled politician Biden is.
Since changing the direction of the Court can only be accomplished by changing the justices—right now there’s a soft six-to-three center-right majority—the only quick way to bring about change is to change the justices. Packing the Court may be fashionable among progressives not content to wait for Justices Clarence Thomas and Samuel Alito to depart, but it isn’t popular with the American people.
According to one recent survey, a majority of likely voters said they opposed enlarging the Court, especially if the purpose of adding justices was to change the direction of its rulings. Just 33 percent of those surveyed by Rasmussen Reports said they were in favor of adopting a proposal like the one put forward by congressional Democrats to add four justices as quickly as it can be done. A solid majority—55 percent—said they were opposed.
“On the specific question of increasing the number of Supreme Court justices to 13,” the polling firm said, “voters divide along party lines much as they do on the more general question. Fifty-six percent of Democratic voters approve increasing the number of justices to 13.” That includes the 29 percent who “strongly approve” of the proposal that congressional Democrats have already put forth as legislation even before Biden’s commission on the judiciary can make its report. Meanwhile, the pollster continued, “Seventy-four percent of GOP voters disapprove of the plan, including 70 percent who strongly disapprove. Among unaffiliated voters, 59 percent disapprove of increasing the number of Supreme Court justices to 13, including 49 percent who strongly disapprove.”
According to the pollster, those numbers are “little changed since October,” when 53 percent of those asked said they opposed packing the Court. Rasmussen found a slim majority in both surveys supporting term limits for appointments to the federal bench—though making that change would require a constitutional amendment, while the number of justices on the Supreme Court can be changed through legislation.
The idea of packing the High Court to change the direction of its rulings has been tried before. Franklin Delano Roosevelt tried to do it in the late 1930s but was rebuffed by a Congress controlled by Democrats—who were nonetheless punished for FDR’s overreach at the next election. There’s something about changing the rules to change an outcome that disturbs most voters. The Democrats had better figure that out fast, or they’ll suffer at the ballot box for their mistake.
President Biden and the Democratic Party still cannot answer a simple question: “Will you, or will you not, blow up the judicial branch of the United States government?”
This should not be a tough one — especially for Joe Biden. Last time a Democratic president considered destroying the Supreme Court, his party described the proposal as “the most terrible threat to constitutional government that has arisen in the entire history of the country” and recommended that it “be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” As a senator, Biden concurred with this assessment. “Roosevelt,” Biden said, “I remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view, unveiled his Court-packing plan.”
Evidently, the presidency does that to some men.
Perhaps aware of the gravity of what they are attempting, the Democrats are running a two-track play. President Biden, through whom many of the party’s most radical ideas are laundered, is simply refusing to answer whether he supports the idea, and, in an attempt to extend the uncertainty, has unveiled a bipartisan commission to “study” the issue. Equally wishy-washy is Nancy Pelosi, who generated headlines yesterday by saying that the current proposal would not get a vote in the House, but did not rule out the idea so much as hide behind Biden’s commission and insist that it needed to be “considered” and is “not out of the question.” In the meantime, less protean Democrats are making the affirmative case. A bill introduced by no less than the chairman of the House Judiciary Committee and the chairman of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet would add four new justices to the Court — exactly the number needed to hand Democrat-approved judges a majority.
Subtle, this is not.
The justifications that the Democrats have proffered are ridiculous on their face. They claim that the Republicans “packed” the Court themselves when, as the party in the majority in the Senate, they merely used their constitutional powers to approve or reject the candidates they were sent. They claim that the Court must be expanded to keep up with population growth and the workload that results — a contention that miscasts what the judicial branch does, and that does not make sense on its own terms (because all justices participate in every case, a court of 13 will not be able to take more cases than a court of nine, and in any event, the Court’s docket is smaller than it was a half century ago). And, finally, they claim that the Court is suffering through a crisis of legitimacy — which, given that it is more popular and more trusted than it was prior to the additions of Justices Gorsuch, Kavanaugh, and Barrett, represents the very opposite of the truth.
What is the truth? That, as it grows more progressive, the Democratic Party senses that it will more frequently hit up against the Constitution itself, and that, when it does so, it is going to need judges who are not interested in what that Constitution actually says. To comprehend this is to comprehend the whole grubby initiative, which will confer benefits upon the Democrats irrespective of its success. If Biden and Co. succeed in their undertaking, the Court will become merely another legislature, there to rubber-stamp the Democratic Party’s transgressions. If the endeavor fails, the Court may nevertheless be so intimidated by the attempt that they begin to bend at the knees. And, either way, the public is taught to mistrust Article III.
There is only one way out of this treacherous scheme, and that is the emphatic rejection that the congressional Democrats of 1937 envisioned. It must be rejected by the Republicans. It must be rejected by the Democrats. And, ultimately, it must be rejected by the people — who did not vote for a regime consumed with freeing itself from any meaningful constitutional restraint, and do not deserve to live under one.
The confirmation of then-Judge Amy Coney Barrett to a lifetime appointment on the United States Supreme Court has been a long time coming. All told, nights and weekends included, it’s been, give or take a day, about 33 years.
In 1987, when Justice Lewis Powell announced his resignation from the high court, the Democrats went to war. They made federal judicial confirmations—hitherto staid, formal and collegial affairs—into battle royales.
The opening shots were fired by the late Sen. Edward M. Kennedy of Massachusetts, who took to the Senate floor to assault the character of the man chosen as Powell’s replacement: Judge Robert Bork, a former U.S. solicitor general and distinguished professor of law at Yale.
Thus, the judicial nomination process was forever changed. Ever since, each party has blamed the other for starting it all. In reality, most of the blame lies with the Democrats, who, after the politics of personal destruction proved so effective against Bork, have repeatedly used smears, insinuations and arguments about character to try to keep conservative originalists off the federal bench. Sometimes, when Democrats controlled the Senate, they wouldn’t give Republican nominees the courtesy of even a hearing. Contrary to what you’ve heard, it didn’t start with Merrick Garland—ask Miguel Estrada, Priscilla Owen or any of the other George W. Bush judicial picks whose nominations to the various appellate courts were held up or blocked completely due to partisan concerns.
Each time the battle over the courts escalated, it was Democrats who almost always drew first blood. It was Democratic Senate Majority Leader Harry Reid who made it possible to force lower court confirmations through with 51 votes, rather than 60, and who used that power to stack the U.S. Court of Appeals for the D.C. Circuit—second in influence only to the U.S. Supreme Court—with appointments made by President Barack Obama.
Now, over the screams, complaints, wailing and gnashing of teeth from progressives who fear what is in store for their agenda, Judge Amy Coney Barrett has become Justice Amy Coney Barrett, thanks in no small part to the way these same opponents rigged the system to operate in their favor. There’s some justice in that.
Everything about her nomination and confirmation was legal, fair and according to the rules as they now are—thanks to Kennedy, Reid and others who corrupted the process. Fortunately for them, Justice Barrett—while she provides the crucial fifth vote to establish something of an originalist majority, as well as being the sixth vote for a center-right one—has not taken her new post with the intention of rewriting the Constitution according to her personal values.
She made that clear after she took her oath of office, saying:
“It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government.”
The Democrats still intend to pack the high court, if they are able to do so. If able, they will attempt to add enough justices to allow the court to make policy for a generation or more. They will find within the Constitution, no doubt, the rights to health care, free public education, taxpayer-funded abortion on-demand, strict regulation and limitation of the private ownership of firearms, compulsion of workers to join unions and whatever else is on their political agenda that doesn’t pass muster with the voters. Instead of pausing, they’ll push on through, eliminating the restrictions on government and expanding its reach. If they succeed.
If they don’t succeed, America finally has the chance to put part of the genie back in the bottle, and to restore to the democratic process the importance of the individual that the reliance on the courts as the last word on everything has increasingly obscured. The elevation of Justice Barrett gives us one more shot at getting it right. Let’s hope, for all our sakes, that the court seizes the opportunity.
The next election will determine the direction of the United States Supreme Court and have a lot to say about its future. Given the outsized role its decisions play in the political life of the nation, that’s important and an issue worth voting on.
The court makes policy and law from the bench. Those who wrote the U.S. Constitution believed those functions were best left to the Congress, the president, and the states. To change that, to limit the ability of the justices to usurp the role of our elected representatives requires the addition of a justice or two who believe they are constrained by the law.
If Donald Trump wins, that’s the likely outcome. Given the precarious health of Justice Ruth Bader Ginsburg, he’ll probably get at least one appointment in his second term. And if that happens, and Chief Justice John Roberts is no longer the deciding vote on key cultural and legal matters, his recent flirtation with the court’s liberal wing might come to an end. It’s unlikely he’ll want to be on the losing side of decisions that come down 5-to-4.
If Joe Biden wins, things will go in the opposite direction, especially if Republicans lose control of the U.S. Senate in November. Then, free of any restraint the filibuster might have imposed, the Democrats could easily pass through Congress legislation packing the court with so many new members the center-right majority currently in place would quickly become a distant memory.
In that world, expect the most radical of ideas to be affirmed by a majority of 2-to-1. The new Biden judges would side with existing liberals to find within the Constitution everything from the right to abortion on demand at any time during pregnancy up to and including the onset of labor, the right to universal healthcare, free education, a guaranteed national income, and the abolition of the private ownership of most firearms. The democratic process would be subverted by activist judges more concerned about results than the law.
It would be the tipping point leading to the downfall of the American system. Accomplished quickly if not quietly, it would perpetuate the advance of progressivism for a century if not more. Those opposed to that outcome should tread carefully so as not to help the enemies of liberty get what they want.
Missouri GOP Sen. Josh Hawley, for some time considered one of the bright lights of the party’s future, has weighed in on this discussion in a big way. A state attorney general before winning his seat in the U.S. Senate he recently told The Washington Post he would “only vote for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.”
“By explicitly acknowledged, I mean on the record and before they were nominated,” he added. “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”
Taking that position publicly is, as one prominent conservative leader told me privately, “destructively stupid.” As a practical matter, more than one pro-life activist brought to my attention, on that one point Hawley could have voted enthusiastically to confirm Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter while being forced to oppose adding Clarence Thomas and Samuel Alito to the high court.
Admittedly our confidence in some of our judicial nominees has been misplaced. Dwight Eisenhower bungled things several times, not just by appointing Earl Warren as chief justice. Nixon, Reagan, and both Bushes made appointments they’d probably have liked to reconsider after they joined the court. The vetting process before the nomination is extremely important and must continue. Trump’s idea to release a list of potential nominees sets a precedent every other presidential candidate should follow. But vetting and litmus tests are two extremely different things. One has its place and one doesn’t, at least not among those who say they are proponents of intellectual freedom.
Hawley’s newfound insistence loads the gun the progressives will use, in the metaphoric sense, to shoot any nominee who’d possibly be any good from a pro-life, limited government, strict constitutionalist perspective. The senator’s heart may be in the right place, but the GOP is not the party that marches in ideological lockstep on every issue. That’s the other team. They’re the ones who use emanating penumbras to find things in the Constitution that Madison, Hamilton, and others didn’t put into it. They’re the ones who place political, social, and economic outcomes over the rule of law. That’s a major difference between us and them and Trump and Biden.
By John McCormack • National Review
In Tuesday’s Wisconsin supreme-court election, conservatives appear to have scored a shocking upset victory. With only a handful of precincts left to report, conservative-backed Brian Hagedorn leads liberal-backed Lisa Neubauer by nearly 6,000 votes out of 1.2 million cast, according to unofficial results.
The liberal Neubauer called for a recount, which a losing candidate may do — if she pays for it herself — when the margin is less than one percentage point. (Taxpayers pick up the tab at margins less than 0.25 points.) But a lead of 6,000 votes would almost certainly be insurmountable in a recount, assuming there were no unusually large tabulation errors Tuesday night, as there was in a 2011 supreme-court election in the state.
Hagedorn’s likely victory comes as a surprise to many. There wasn’t any public polling, but one Republican GOP operative in Wisconsin tells National Review that private polling in the closing weeks showed Hagedorn trailing by mid-to-high single digits. Continue reading
In a 2006 interview, Supreme Court Justice Stephen Breyer said the Constitution is “basically about” one word — “democracy” — that appears in neither that document nor the Declaration of Independence. Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to “secure the blessings of” that which simultaneously justifies and limits democratic government — natural liberty.
The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected. Continue reading