We can’t count on the Supreme Court.
For too long, many conservatives have relied on the Supreme Court to thwart the Left. I cheered over the last few years as President Trump’s appointees shifted the makeup of the Court to the Right, arguably becoming the most conservative Court since before the New Deal. I was thrilled when it handed down 6-3 decisions overturning Roe v. Wade, upholding gun rights, clawing back power from executive agencies, and quashing Biden’s attempts at student loan forgiveness.
The Supreme Court recently handed down two unanimous decisions that were clear conservative victories. The first vindicated the religious (and thus tax-exempt) status of Wisconsin’s Catholic Charities over against scrutiny from the state government. In the second decision, the Court sided with a heterosexual woman in Ohio who sued her state as a result of experiencing reverse discrimination that favored lesbians and gays. And in what is perhaps the biggest conservative win from the Court this term, we witnessed a 6-3 decision upholding Tennessee’s ban on transgender procedures for minors.
However, careful scrutiny presents a more nuanced and less optimistic picture. The Court often proves, in scriptural terms, to be “that broken reed of a staff, which will pierce the hand of any man who leans on it” (Isaiah 36:6). Even when the Supreme Court allegedly hands what look to be wins to conservatives, it still poses obstacles to the reform and recovery of the American republic. In its current manifestation, it vacillates between open obstruction of President Trump’s conservative agenda, most visible in his deportation efforts, and less visible in its reliance on liberal paradigms of constitutional construction. Many have drawn attention to the Court’s permitting nationwide injunctions by individual federal district court judges.
Just this month, the Supreme Court simultaneously declined certiorari in two major gun rights cases—one case challenging Maryland’s ban on “assault rifles” (which also includes the AR-15, a semi-automatic rifle) and the other challenging Rhode Island’s ban on magazines that can hold more than ten rounds. It also declined to hear the appeal of Liam Morrison, a middle school student from Massachusetts whose public school forbade him from wearing a T-shirt saying, “There are only two genders.” Justices Alito, Thomas, and Gorsuch voted to hear the cases, but they could not gather the requisite four votes to grant cert.
What the Supreme Court does by omission is just as significant as what it does by commission. It has effectively castrated the Second Amendment by permitting states to restrict fundamental gun rights. And it has simultaneously given its imprimatur to public schools to silence the freedom of expression of Christians and conservatives. So much for the Court protecting individual liberties.
While the Bill of Rights was originally intended only to bind the federal government and federal agents, that hasn’t been the case for a long time. Due to the 14th Amendment, the complex history of 14th Amendment jurisprudence, and the legal evolutions of the 20th and 21st centuries, it is prevailing Supreme Court doctrine that the federal government may indeed interfere in the internal governance of the states to vindicate rights that are being disregarded. Take the Civil Rights Act of 1964 and the Voting Rights Act of 1965 as prime exhibits.
Occasionally, this federal intervention happens to the advantage of conservative causes, such as when the Court defends the rights of Christians against hostile state governments, as in the notable cases of Jack Phillips and Lorie Smith in Colorado. However, as one might expect, the heavy hand of the federal government only intervenes selectively, guided by the concerns of the civil rights regime. In the eyes of the Court, anti-discrimination cases are more likely to warrant federal intervention. The feds clearly have no problem intervening in the states’ internal governance when they want to.
In addition to the gun rights and free speech cases mentioned already, look at the issues coming out of 2020: the Supreme Court made no significant attempt to stop the overreach of the COVID lockdowns imposed on citizens by state and local governments. Nor did they see the extremely questionable relaxation of voting laws (some even changed by executive fiat) as a threat to citizens’ voting rights.
Frequently, the Supreme Court also uses doctrines like standing, which in principle is necessary for a functional and rational court system, to selectively sift and control which cases it hears.
Equally frustrating is the rapid-fire litigation of cases appealed to and taken up by the Court about the due process rights of illegal immigrants whom the Trump Administration seeks to deport. Why the concern for these rights while simultaneously dismissing appeals for the obvious First and Second Amendment rights of American citizens? Or the due process rights of American citizens like those arrested on January 6, pro-lifers, or Donald Trump—all of whom were targeted by Biden’s weaponized DOJ. The disparity is glaring.
Our supposedly conservative-leaning Supreme Court is passive and selective in vindicating rights. It is not an impartial tribunal, and it cannot be relied upon to help gain ground in our struggle for national restoration. The Court fails to intervene in protecting American citizens, promotes liberal doctrines of anti-discrimination, protects favored classes, and indulges in disparate impact theories of equity, secular notions of free speech and religious disestablishment, and helps erode natural and constitutional rights of citizens. “Winning” within this paradigm is not sufficient, nor is it effective in the long run.
The New Right’s task is to face this massive challenge. It should begin by honestly evaluating the extent to which our regime is a departure from our founding principles and the Constitution as originally understood. Only by admitting that we live in a regime that differs greatly from the one our Founders established can we begin to make progress in rectifying this problem.
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