Submitted by: Veronica Coffin
Written by Andrew Thomas
The U.S. Supreme Court’s recent end of term rulings on Obamacare and same-sex marriage have reshaped not just American law and society. These highly political decisions naturally impacted the political scene, as well. Indeed, the unique dynamic of the GOP race for president ensures that liberal judicial activism will be a major issue in the 2016 Republican race.
The high court’s rulings in King v. Burwell and Obergefell v. Hodges showcased the federal courts’ continuing hostility to conservative principles. A few days before the two landmark rulings were issued, the New York Times gushed that the high court under Chief Justice John Roberts was the most liberal since 1969, the heyday of the Warren Court.
In his dissent in Obergefell, Chief Justice John Roberts wrote “this Court is not a legislature”—even as he signed onto a plainly political decision to uphold Obamacare in King. Justice Antonin Scalia, in his separate dissent in Obergefell, called the majority’s ruling a “judicial Putsch,” and predicted the Supreme Court’s “hubris” would prove to be pride that “goeth before a fall.”
Whether or not Scalia’s prophecy materializes, it is clear Republican candidates for president will be forced to confront these issues. There are now 17 declared Republican candidates for president. Governors Scott Walker of Wisconsin and John Kasich of Ohio have recently declared their candidacies along with Jim Gilmore, the former governor of Virginia. Still more might yet appear. The sheer size and competitiveness of the GOP field will make activist liberal judges a prime issue in the race.
The candidates’ variety of responses to these rulings foreshadows the spectrum of positions to be expected. Their comments following Obergefell ranged from Governor Jeb Bush’s admonition to “love our neighbor and respect others” to Governor Mike Huckabee criticism of “judicial tyranny.” All took issue with the two rulings to some degree, for they had to: None can afford to alienate the large bloc of conservative Republican primary voters who will largely determine their electoral fate. Nationwide, self-described conservatives make up two out of three voters who regularly participate in GOP primary elections. These voters will wield great power as they go about making their choices this election season.
That Republican presidential candidates now must contend meaningfully with judicial activism marks an important change. Traditionally, Republican leaders have avoided these issues, both on the stump and in office. Indeed, these recent court rulings are a product of such neglect. A succession of Republican presidents and members of Congress largely shunned the tough work of combating liberal judicial activism, sowing the seeds for these rulings. To avoid controversy and attacks from the liberal media and other allies of liberal judges, these leaders have sacrificed, for decades, the Constitution and self-government out of political self-interest.
This has been the pattern among Republican leaders since the Warren Court began shattering America’s traditional institutions in the 1960s. Some strong conservatives, such as U.S. Senator Jesse Helms, emerged to challenge these judicial actions. Liberal media elites and their allies promptly demonized them. Seeing this, most Republican leaders settled for urging feckless reforms and pursuing them half-heartedly, kicking the can down the road. This allowed them to stay out of the crosshairs of the liberal media, Hollywood and other big guns of the American left, who diligently defend the courts.
Former House Speaker Newt Gingrich memorably accused such leaders of “managing the decline” of the nation. Conservatives who have suffered these years of betrayal now have a chance, in this election season, to settle accounts. As Republican candidates for president face the wrath of conservatives betrayed by decades of such impotence and indifference, stock political promises to appoint “strict constructionist” judges and the like will not go over as well. Misled and abandoned by their leaders, conservative Republican voters will be watching more closely this time, as their basic liberties and values are judicially shredded before their eyes.
Indeed, the sheer size of the field of GOP candidates creates a powerful incentive for more conservative candidates to speak to those voters beleaguered and outraged by the left’s ongoing onslaught. Already, candidates as wide-ranging in their backgrounds and beliefs as Huckabee, Governor Bobby Jindal of Louisiana and Dr. Ben Carson have expressed profound dissatisfaction with the federal courts—raw sentiments rarely heard in a GOP presidential race. We are likely to hear much more of this.
That the Republican contest has drawn so many top-tier candidates is a boon to the democratic process, but especially conservatives concerned about the current state of the nation. At least until the Republican nomination is sewn up, these voters will enjoy an unprecedented freedom of political choice. For their part, conservatives must not allow themselves to be hoodwinked, once again, by political leaders who prefer to offer such shopworn fare as cutting taxes or curbing the bureaucracy. The left remains shrewdly focused on controlling the courts because they know this is their source of ultimate power.
By losing such focus, conservatives have seen their civilization wrecked by liberal activist judges.
The same political clichés we have heard for decades from GOP candidates are unlikely to work this time. The direness of the current situation ensures that in 2016, American voters will hear the most candid discussion of judicial abuses of power since the Warren Court.
Andrew Thomas is a fellow at the Selous Foundation for Public Policy Research and the author of the book Clarence Thomas: A Biography. The Selous Foundation recently published his white paper entitled “Overruling the Courts: How We End of the Reign of Liberal Judges in 2016.”