The Left Discovers SCOTUS Is Undemocratic – Pictures at 11:00
By Don Feder
October 22, 2019
The mainstream media and left-wing punditry have made a startling discovery: The Supreme Court is undemocratic. Next they'll tell us taxes have an impact on the economy. Naw, they'd never do that.
In an opinion piece in the October 12 Washington Post ("The Supreme Court could get a lot more Undemocratic") Leah Litman , an assistant professor at the University of Michigan Law School, writes: "Despite the significant power it wields, the Supreme Court is among the federal government's most undemocratic institutions. Its justices are appointed for life and confirmed by presidents and the Senate – which themselves do not necessarily reflect the will of the people."
The left regularly confuses its Cultural Marxist vision for the "will of the people" – like the Chi-Coms who call their regime the People's Republic of China, when what the people want is entirely irrelevant.
It's only in the past two decades (and especially in the era of Trump) that the left acknowledges that the Court is fallible.
They used to tell us Supreme Court decisions were the voice of God, and anyone who challenged their validity was a heretic. That Trump has appointed two Supreme Court justices in less than three years (and could end up appointing a majority over the course of two terms), has them biting their fingernails and denouncing the undemocratic nature of the august institution.
Here's a sample of headlines from lefty sources: "Donald Trump's Supreme Court vs. Democracy," "The Supreme Court is an Anti-Democratic Hot Mess," "The Supreme Court is a Slurring Undemocratic Mess," " Two Cases Show the Astounding Breath of the Supreme Court's War on Democracy" and – my favorite – "Save the United States from this Anti-Democratic Supreme Court."
That the Court isn't now and was never intended to be democratic should be as much of a revelation as the fact that Hillary Clinton needs a course in anger management.
The left doesn't give a fig about democracy. Its gripe is that, increasingly, a majority of the Court actually follows the Constitution, instead of liberal dogma.
If liberals really cared about democracy, where were they in 1962, when SCOTUS banned prayer in the public schools (in Engle v. Vitale), which a majority of Americans strongly supported? How about Roe v. Wade in 1973, when the Court overturned the laws of 31 states by making abortion legal throughout the land?
Talk about giving the will of the people a Bronx salute, prior to Obergefell (2015), 31 states had adopted ballot measures banning legal recognition of same-sex marriage. Obergefell nullified all of them and tens of millions of votes because they stood in the way of what liberals call social progress.
Yes, of course, SCOTUS is anti-majoritarian. Although, in a way, we do get to vote on the composition of the Supreme Court when we elect presidents (who nominate) and Senators (who confirm). The first election when voters focused on that was 2016, when there was a vacancy on the Court, due to the death of Antonin Scalia.
The electorate was presented with a stark choice: Who do you want to fill that vacancy, Hillary (who viewed the Court as the left's magic lamp) or Donald Trump, pledged to judicial restraint? They chose wisely.
Here are a few other undemocratic institutions, which wield significant power:
The United States Senate – where Texas (with a population of 29 million) gets exactly the same number of senators as Rhode Island, with slightly more than 1 million people.
The Electoral College – Presidents are elected not by a majority of the popular vote nationwide, but by a majority of electoral votes. A candidate can carry a state by 50.1% of ballots cast and get all of its Electoral votes, while his opponent with 49.9% gets a hearty handshake and congratulations for coming in second.
The U.S. Constitution itself – which protects minority rights, thus limiting the power of the majority. The word democracy appears nowhere in the Constitution. That's because the Founders, who abhorred democracy (having seen its excesses throughout history), created a republic, where government was strictly circumscribed.
During World War II, most Americans thought it was a swell idea to put Japanese-Americans (including those born here) in internment camps. The Supreme Court thought otherwise when a case finally reached it in 1944.
Besides democracy, you will look in vain to find the following words/concepts in the Constitution – marriage, privacy, church/state separation, fairness, equality and social justice. In case after case, leftist justices have written them into the Constitution in invisible ink (which they alone could read).
The left's real gripe with the Supreme Court has nothing to do with democracy. It's that the court is gradually moving away from judicial activism and toward original intent which leads to judicial restraint.
In 1973, liberals wanted unimpeded access to abortion. "It has to be in the Constitution somewhere," they insisted, "women must have the right to choose." A majority of the court agreed and found it in an unstated right to privacy in a non-existent penumbra of the First Amendment. Sixty-one million dead babies latter, Roe has become the left's Holy Grail.
The same thing happened 42 years later in Obergefell v. Hodges. Among the 31 states which passed constitutional bans on gay marriage was California, the most liberal in the nation.
"The hell with that," SCOTUS said by a one-vote margin. "We want it, so it has to be there." Does anyone with an IQ over AOC's really believe that a group of 18th century intellectuals and activists, most devout Christians, wrote our foundational document to protect the right of two men or two women to have their "union" recognized in law?
The left's problem with SCOTUS isn't that it's undemocratic but that it's not elitist enough. For decades, whenever it couldn't get something through Congress or a state legislature it ran to SCOTUS or an appellate court, and was given it gift-wrapped under some pretext or other. (This is what progressives mean by a "living Constitution.")
As currently constituted, the Supreme Court isn't conservative/constitutionalist, just a bit more grounded in reality. We're still a few nominations away from returning sovereignty to the people.
Last week, the Court refused to hear the case of a child in the Maryland public schools who was forced to write an essay affirming the Moslem conversion creed or receive a failing grade. We have a long way to go.
But the United States Constitution is finally beginning to intrude on the high court's deliberations. And that's driving the left nuts.
Don Feder is a former Boston Herald writer who is now a political/communications consultant. He also maintains a Facebook page.