A SCOTUS Guide for the Perplexed

By Clarice Feldman | American Thinker

As is usual, the Supreme Court saved its most important decisions for the end of this term, and the three biggies were handed down within days of each other: “Bruen (gun rights), Dobbs (abortion rights) and West Virginia (administrative regulation of CO2).”

You don’t have to be a constitutional law scholar to wade through all this and the footnotes, citations, and legal disputations. Francis Menton has done it for you:

(You can’t rely on the major media to do it. For the most part they share the same ideological viewpoint as that of the three dissenting justices, a view Menton explains very well.)

In a nutshell:

  •  Vision 1.  The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection.  The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved.​
  • Vision 2.  The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete.  The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document.  If a right is enumerated in the Constitution but disfavored by the current left (e.g., the right to “keep and bear arms”), then the courts should find a way to uphold enactments that minimize that right down to the point that it is a nullity.  If a right is not enumerated in the Constitution, but is a priority of the left (e.g., abortion), then that right can be discovered in some vague and unspecific constitutional language (“due process”).  And if the left has a priority to transform the economy and the way the people live, but the Congress does not have sufficient majorities to enact that priority, then the Executive agencies can implement that priority on their own authority, and the role of the courts is to assist the agencies in finding something in the tens of thousands of pages of federal statutes, however vague and dubious, that can be claimed to authorize the action. [/quote]

These two views, he correctly observes, are irreconcilable.

The dissents, like the media coverage (I add) are made in the context of a 6-3 division in which View 2 has no chance of prevailing over the court’s majority which, unlike the media and academia, adheres to View 1.

So what’s the losing justices’ option? Obfuscate, because you sure don’t want people to understand that you want to take a position contrary to the clear words of the Constitution and as well, I say, to the overwhelming views of the electorate.

In Bruen, the dissent argued that gun control was the only acceptable moral decision in the face of statistics on firearm killing. (Another, option, of course, is a constitutional amendment, but the dissent knows as well as I do that would never pass.)

In the Dobbs case, the majority said there was nothing in the Constitution respecting a right to abortion, and that was an issue best left to the states, not some fancy penumbra and emanation confection by the Court. Again, the dissent made an appeal to its view of morality, not the law. Menton summarizes the dissent’s argument:

“To oppose us would be to take women back to the Middle Ages.  And what exactly does that have to do with the Constitution?  Only a troglodyte could ask such a question!  Obviously, the Constitution says whatever is needed to support these critical moral principles.”

Well, it worked well enough to get most of academia on board, and if your media sources resemble those I’ve seen, the moral angle will be played to the hilt with stories of exceptional cases being treated as the rule. Never does it occur to these proponents of rule by judicial fiat that, there too, if they have the votes, they can write into the state laws abortion rules that suit them. They can even push for a constitutional amendment. Nor does it ever occur to them the greatest danger of the second view: A court that holds an entirely different view of morality could ignore the written and duly passed laws to enforce their own views. This escapes them because they’ve been in driver’s seat for so long they naturally assume they will always be there.

And then there’s the clipping of the administrative state in the West Virginia case, which I treat with greater detail here: another-big-win-the-court-clips-regulatory-states-claws

Whether or not you agree with Justice Elena Kagan’s frenetic claims about CO2, Menton is absolutely correct in his analysis of her dissenting opinion.

The text of the Constitution?  The reservation of “all legislative powers” to the Congress?  Those are for chumps.  By page 5 of her dissent, Justice Kagan has made it clear that a statute that just said “The government must do everything appropriate to save the planet;  EPA to implement.”  would be just fine with her to authorize the agency to transform the economy.

He’s right too, that the last decision — West Virginia — is the most important one of the three. The Biden administration, without congressional action, is using the chimera of climate change to completely transform the economy. It is churning out pages of rules and regulations designed to hamper domestic energy production, not only through the EPA, but as well the SEC and Department of Interior. The rising prices of fuel, food, and shelter are occasioned by such rules and regulations, which make scarce that of which we have plenty — sources of energy. The cost is being born by millions of Americans, and it’s clear to me that Kagan’s view of morality and theirs’ is in growing conflict.

Are you onboard with a country and its economy ruled by unelected bureaucrats given the green light to do so by unelected judges? I didn’t think you were. The dissenting View 2 justices are no match for the brilliance of the Founding Fathers who created the most sensible and abiding ruling Constitution.

As the losers in Congress continue to smear former President Trump using the vehicle of an utterly one-sided and partisan committee, don’t forget who made this needed shift possible.  It was the very same Donald J. Trump, master of the mean tweet, who nominated the justices who are returning this country to a semblance of ordered liberty, respect for the law, and the Constitution.

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