Brett Kavanaugh’s nomination by President Trump for the blessed vacancy left by retiring justice Anthony Kennedy, author of the civilization-defying Obergefell opinion, supplied the heat necessary to cause the vaunted American melting pot to boil over and reveal its rancid contents. Those contents included the innocent limbs and brains of David Daleiden videos, eagerly devoured by medical research companies and left-liberals zealous to protect a woman’s right to kill.
America’s alabaster cities of beautiful patriot dreams now burn with a bloodlust outshining that of the recipients of Beecher’s Bibles in Bleeding Kansas.
On Independence Day, Netflix posted the infantile comedienne Michelle Wolf’s “Salute to Abortion,” setting the mood like a dark overture less than a week before Trump’s announcement. Similarly, ABC News prepared viewers for a discussion of Trump’s “controversial” nomination even before they knew who it was. That detail was unnecessary: Whoever he (or she) turned out to be, he was going to be the justice to tip the scales toward an imagined holocaust of women, by stopping a real holocaust of children. Miss Wolf confirmed her status as the Woke Generation’s spokesman of the moment, eschewing the cautious and duplicitous language of Bill Clinton, who claimed to want to make abortion “safe, legal, and rare.” Yesterday’s center-left feel-good do-bad boomerspeak strikes today’s intersectionals as nothing short of violence against women. After all, it suggests that fetal murder is somehow undesirable, thus giving power to white heterosexual male oppressors who by design of the infernal gods cannot be forced to carry a baby to term. To prove that you do not hate women, you must instead treat infanticide as entertainment. “If you need an abortion, get one!” bellowed Miss Wolf, flanked by a marching band in red, white, and blue. “If you want an abortion, get one! God bless abortion!”
Playing the part of a brain-dead Charlie Hebdo, People reported on this soul-dissolving blasphemy as if it were both unremarkable and courageous: Wolf “took to her Netflix show” to “share her opinion.”
Trump then made his announcement on July 9—coincidentally, the 150th anniversary of the dubious ratification of the 14th Amendment, which is the sacred text of all judicial activists. Immediately, the DNC issued a tweet declaring that “A vote for #KavanaughSCOTUS would . . . deny women their right to make their own health care choices.” In their rush to break news they’d already manufactured, the DNC included a picture of the wrong judge—one of Trump’s other finalists. Celebrities, Democratic politicians, and the entire news media (apart from FOX) nearly self-immolated and demanded the bitterest of fights in the Senate and in campaigns for the midterm elections.
All of this happened because Kava naugh’s confirmation could mean that, if the right case wended its way through the lower courts, a conservative-majority Supreme Court might overturn Roe v. Wade (or more likely, Planned Parenthood v. Casey). Need we remind ourselves that such an overturning would, consequently, mean that abortion-on-demand would remain firmly protected in every liberal state, since this action would not in any way be the equivalent of a human-life amendment to the Constitution? In short, the left is calling for revolution in the streets purely to avoid possible abortion bans in some—not all—Red States, most of them in the benighted South.
Heading into the confirmation hearings, the question remained: Would a Roberts-Kavanaugh Court overturn Casey and Roe? There are reasons to hope, and reasons to doubt.
Kavanaugh seems to have been running for the Supreme Court throughout his entire judicial career. He knows how to do the Roe dance. Ever since Robert Bork’s last name became a verb, conservative judicial nominees have played the emasculating game of refusing to answer questions directly and honestly about the elephant in the room, the most absurdly reasoned case in SCOTUS’s history. The script is banally predictable. Democratic senators preen for the camera, attempting to pin down the nominee with a sort of reverse litmus test, and the nominee replies with vague answers about the sacredness of stare decisis. He sits and endures the spectacle for hours and days while lofty terms—established precedent, super precedent, watershed—pass through the lying lips of those who are swift to shed innocent blood.
During his previous confirmation hearings (for the federal D.C. court of appeals) Kavanaugh insisted that, if confirmed, he would respect Roe and Casey as established precedent. This statement has been a cause for legitimate concern from abortion opponents who see Kennedy’s retirement as our long-awaited moment. However, in a 2015 dissent he wrote in Priests for Life v. HHS, Kav anaugh indicated that he views the role of lower courts very differently from the role of the Supreme Court:
We are a lower court in a hierarchical judicial system headed by “one supreme Court.” [Art. III, Sec. 1.] It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can.
By itself, this would mean next to nothing. But Kavanaugh’s comments during a speech delivered to the American Enterprise Institute last year give us more context. On that occasion he opined at length on the dissent of Associate Justice William Rehnquist in Roe, lauding Rehnquist’s conservative opposition to so-called substantive due process, the bane of constitutional originalists and textualists. By the “doctrine” of substantive due process, judicial activists discover rights that are not listed (enumerated) in the actual text of the Constitution or its amendments. The late Justice Antonin Scalia referred to this liberal sleight of hand as “the proposition that due process is the secret repository of all sorts of other unenumerated, substantive rights.” And Neil Gorsuch approvingly cited Scalia’s dismissive definition in his 2006 book The Future of Assisted Suicide and Euthanasia.
Rehnquist, said Kavanaugh,
stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions in conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion.
Kavanaugh went on to praise Rehnquist for his work as Chief Justice in “stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
The pro-life movement has borne witness to the world that the elective killing of the unborn is not a reflection of the deeply held beliefs and traditions of all Americans. Yet Roe has been around for nearly 45 years, and the culture of death is well established in and among left-liberals, whose numbers only grow thanks to the march through the institutions and the Third World invasion of future Democratic voters. (Kavanaugh most recently dissented when his D.C. court ruled that a 17-year-old illegal alien girl had a right to the American dream of a swift abortion.) Whether Kavanaugh thinks Rehnquist’s textualist argument against abortion rights still applies, given the cultural shift that occurred decades ago and in light of the “high-tech lynching” he’ll face during his confirmation hearings and beyond, time will tell. We may expect him to do the Roe dance before the Senate for the benefit of Susan Collins and Lisa Murkowski.
But there is no call for us to sit idly by, waiting for confirmation from the United States Senate, then hoping for a case that a Roberts-Kavanaugh Court would be willing to review. Conservatives must counter the bloodlust of the Woke Left with clear and persistent moral teaching on the sacredness of life and compassion for those who are tempted by the abortion industry.
We may also begin to remember our past with an eye to the future and ask whether so vast a country, with so diverse a population, was ever meant to live under the singular power of a domineering centralized government whose judiciary boasts of the authority to determine which of our rights are fundamental and whether or not a state has a compelling interest in any matter whatsoever. Should Arkansas and Wyoming nervously wait for a decision every four years from the teeming urban centers of New York, Chicago, and Los Angeles regarding the election of a president who may have the opportunity to nominate a justice who could tip the balance of a nine-member Court that would decide the fate of those flyover states’ deeply held beliefs and culture?
“I am strongly tempted,” wrote Frank Owsley in 1936, “to assert that the Constitution of the United States is not the original document adopted in 1789 or the twenty thousand pages of decisions, but the Supreme Court itself.” Jefferson’s nightmare had come true, thanks to the Incorporation of the Due Process clauses of the Fourteenth and Fifth Amendments, the basis of modern claims regarding “substantive” rights that float upon the wind, free of any text. Enduring the Roe dance is beneath the dignity of a free people.
“Such an assertion,” Owsley continued, “would be equivalent to saying that we are living under a judicial despotism.”