Nuclear Option: Misplaced Conservative Outrage

Harry Reid's recent “nuclear” detonation left many conservatives in high dudgeon over "tyranny of the majority."   I recently argued that this contradicts the widely-held view that America is under the thumb of a corrupt bipartisan ruling class, viz.: (a) authoritarian reign by largely leftist oligarchic bureaucratic, judicial and media elite minorities over what President Nixon was once ridiculed for calling the "silent majority"; and (b) illegitimate domination by powerful over powerless minorities.   

Although Reid’s main goal was to pack the D.C. Circuit, justices were appointed to the Supreme  Court, long before his “nuclear option,” to rubber-stamp and provide faux legitimacy to metastasizing unconstitutional, legislatively created federal bureaucratic minority tyranny since the New Deal. Thanks to them, only the ruling class and "favored" minorities have rights, crushing those of the majority and "disfavored" minorities. Thus, quota discrimination has been imposed in violation of both the Constitution and explicit statutory language; property rights and religious freedom have been undermined; violent criminals have “rights” at the expense of the vast majority of law-abiding individuals; and, worst of all, massively harmful Obamacare has been legitimized in an egregiously disingenuous opinion written by a publicly threatened chief justice.

Reliance upon judges is misplaced. Ruling class Republicans have failed to exercise their existing power to block the tyrannical assault on freedom and representative democracy.  House leaders have blocked fulfillment of the very promise that made them leaders. If a genuine opposition party is not established, nothing can save the Constitution – or the representative democracy and freedoms that are the heritage of this country.

Should Those Who Revere the Constitution Respect Those Who Don’t?

As one who deeply admires Justice Thomas and agrees with Tom Goldstein that he has been “our greatest justice,” I am distressed by Thomas’ televised public statements off the Court undercutting his courageous defense of the Constitution and rule of law on the Court. 

Having previously praised liberal activist justices as individuals, he subsequently proclaimed their written court opinions to be as worthy of respect as his own. But I contend here that this disregards opinions, in the most divisive cases, that are often value judgments disguised as constitutional interpretation. Thomas himself has made that point throughout his tenure.

In my view, to say that all value judgments are entitled to respect is to preach from the bible of leftist multiculturalism. Citing opinions Thomas has written, joined and opposed, I ask: are opinions entitled to respect when Thomas states that they (1) dissemble; (2) are lawless and illegitimate; (3) engage in arrogant usurpation of power, limited only by justices’ sense of what they “can get away with”; (4) are based on the belief by justices that blacks are inferior to whites; (5) use the same rationalizations earlier employed by slaveholders and segregationists; (6) sentence the most vulnerable  law-abiding citizens to lives of terror in order to protect gang members who inflict that terror, etc., etc.?

Of course, Thomas cannot be expected to publicly insult the activist justices he must work with. But this surely does not require him to go to the polar extreme by suggesting that his opinions, faithful to the law and reflecting widely accepted values, are no better than theirs. At a time when the left employs Alinsky rules, it is imprudent for conservatives to observe Marquis of Queensberry rules. Given detrimental abuse of power by many justices, it is ill-advised to legitimize what they do by declaring respectable the undemocratic imposition of their idiosyncratic harmful personal morality upon the American people.

Should the Best Justices Publicly Praise the Worst?

On television, Justices Thomas and Scalia “lavishly” praise colleagues whom Curt Levey suggests are nightmarish. My latest article explains and documents why oral public accolades by the best justices for the worst are not only unwarranted but refuted by their own written opinions.

 

Repeatedly in writing, Justices Thomas and Scalia have questioned the integrity of their colleagues; and accused them of arrogance, lawlessness, license, illegitimate abuse of power, basing decisions on no more than their own personal values, contempt for the Constitution, sowing confusion rather than providing clarity, hypocritically pretending to defend the weak against the powerful while actually favoring the powerful at the expense of the weak, protecting inconsequential expression while disdaining the heart of the first amendment, poisonous and pernicious racism and sexism, belief in black inferiority, jeopardizing the lives of good innocent people in order to save the lives of the most vicious and depraved, placing the welfare of terrorists above the lives of soldiers combatting them, mandating infanticide (the barbaric killing of human children), and numerous other sins.

 

These are very strange criteria for “good … honest … fabulous” justices. 

 

If it is unrealistic to expect Thomas and Scalia to criticize sharply in public those with whom they must work, cordial interpersonal working relationships surely do not require going to the opposite extreme. Even if it would be inappropriate to be publicly negative about other justices, there is no reason to give lay people the impression that rabid leftist judicial ideologues are fantastic rather than destructive. Facing the grave threat of losing even the current sometime constitutionalist Supreme Court majority, this can only lend legitimacy to and encourage the judicial arrogance, dishonesty and abuse of power against which Scalia and Thomas repeatedly have protested in writing.

If total calamity is to be averted, conservatives must effectively educate the public about dangers posed by extremist liberal judicial activism. Robert Bork was defeated by vicious lies. Leftist fanatics should be defeated by the little-known media-buried truth. 

My article provides an easily understood review of the Scalia-Thomas catalog of shocking truths.

See SSRN or here (with links), and here (without links).