A Counterrevolutionary Supreme Court Litmus Test in the Making

I really do appreciate the efforts of Constitutional Conservative legal beagles Randy Barnett of Georgetown and Josh Blackman of South Texas College of Law in laying out in some detail–and not in a legal journal but in the Weekly Standard–rules for examining future Republican Supreme Court appointments. It’s not just a litmus test in the making–which presidential candidates in both parties typically say they do not want to administer–but a rationale for a litmus test. And their piece has the advantage of being very clear on the key points.

To Barnett and Blackman, who first discuss the notorious history of Republican SCOTUS appointments they view as betrayals, the big thing is that prospective Justices have a clearly documented willingness to ignore both other branches of government–the principle behind the receding Republican doctrine of “judicial restraint”–and stare decisis–the principle against overturning well-settled Court precedent–in pursuit of the “original” meaning of the Constitution. That means treating SCOTUS as an all-powerful institution communing with eighteenth century Founders–or worse yet, Con Con mythologies about those Founders–and empowered to kill many decades of decisions by all three branches of government, precedent and democracy be damned. No wonder they talk repeatedly about needing Justices–and presidents–with courage! And the dividing line between good and bad “conservative” Justices could not be made much clearer: Alito goooood! Roberts baaaaaad! Barnett and Blackman even suggest their rules should be made clear to and then demanded by presidential primary voters!

If that actually starts happening, it will be as or even more important to watch as any other discussions of any other issues. As Brian Beutler recently noted in an important piece at TNR, Barnett and Blackman are among other things leading advocates for a return to the Lochner era of jurisprudence, whereby most regulations of private economic activity by the executive or legislative branches would be declared unconstitutional as an abridgement of “natural law” concepts in the original Constitution and an exotic understanding of the due process clauses in the 5th and 14th amendments. These are dangerous people to let anywhere near a Supreme Court nomination. But they and many others like them, who now play a dominant role in the very powerful conservative legal fraternity the Federalist Society, are likely to be right there with their litmus test in hand.

Anyone who thinks it doesn’t matter who wins the 2016 presidential election because the two parties are both loaded with corporate stooges needs to pay attention to this issue. Barnett and Blackman are very clearly pointing the way to abolition of the entire New Deal/Great Society legacy via rulings by judges serving lifetime terms. If that doesn’t matter to you, I’m not sure what does.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.