The American Left is at war with the Supreme Court of the United States.
“Liberals and progressives lost control of the Court,” Dan McLaughlin writes in the new cover story of National Review magazine, “and they are now willing to trash it if the alternative is for it to remain outside their control.”
Their reasoning is easy enough to follow, because the Left and its allies in the Democratic Party would “prefer that there be no part of the federal government that is inflexible, uniform, and fearless in following the Constitution.”
The progressive assault on the Court began after the Left lost ideological control of the institution through the appointment of three originalist justices during the Trump administration. It grew to a fever pitch after last summer’s Dobbs decision. You might have noticed that, in the decades during which the Court leaned left on important issues, progressives had no problem at all with an activist third branch of government that routinely dispensed with the progressives of the two elected branches.
As Dan writes, however, “in recent weeks, the central front in this war has been ‘ethics.'”
The justices have faced a two-pronged offensive. One prong is Democratic politicians arguing for new ethics rules, the centerpiece of which was a Senate Judiciary Committee hearing on May 2 chaired by Dick Durbin, the second-ranking Democrat in the Senate. The other prong is a daily media drip of stories purporting to show ethical violations by the conservative justices and their families. When nothing is available on the justices, the critics go after conservative legal groups such as the Federalist Society, activists such as Leonard Leo, and even a law school the justices have taught at.
In his cover story, Dan sets the record straight on the various corruption allegations leveled at conservative justices. These charges, Dan writes, have ranged from “flimsy” to “comically weak,” but that hasn’t stopped the breathless — and coordinated — campaign in the mainstream press to launder the charges into a general indictment of the Supreme Court and its powers.
Of course, as Charles C. W. Cooke writes, there’s another reason that the Left’s fury has grown so heated in the face of an ascendant conservative, originalist bloc on the Court: the utter bankruptcy of left-wing judicial philosophy in America.
“In constitutional law,” Charlie writes in “The Left Has No Judicial Philosophy,” ideas and arguments truly matter.”
But, “properly understood, there is no such thing as a ‘progressive legal project.'”
There are progressives, there is raw power, and there is nothing of substance outside of them. Read through the most popular critiques of the new Supreme Court majority and you will discover little that can be reasonably identified as a philosophy, an approach, a framework, or a theory. Having been out-thought, out-researched, and out-argued for the better part of half a century, America’s progressive lawyers now exhibit their own version of what Lionel Trilling famously described as “irritable mental gestures.”
Read both articles in the new May 29, 2023, issue of National Review, along with:
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