I started to write an article this month on a completely different topic, when Justice Kennedy decided to retire from the Supreme Court. As I am writing this, President Trump had just nominated Judge Brett Kavanaugh to the court. By the time you are reading this, the entire country should be embroiled in a debate on what Judge Kavanaugh’s presence on the court will mean and whether he should be confirmed.
Let me remind both sides of the debate that rarely do we realize our greatest hopes or suffer our greatest fears. My thinking (and I feel it is very sound) is that Judge Kavanaugh will be confirmed, but cases of great impact to our society will take time to make their way to the court’s docket. The left is fearful that abortion will be outlawed or the ban on gay marriage will be reinstated with a more conservative leaning court. I don’t think this will happen for two reasons:
- Conservative jurists are more prone to return issues to the states to individually determine. I believe if abortion does come before the court that the issue will be opened up for each state to decide whether to allow it, ban it or find some middle ground. My feeling is if the issue is returned to the state you will see about 30 states (Texas included) basically ban the practice. Those same 30 will probably ban gay marriage. A good 15 states will keep both practices completely legal and the remaining states will land somewhere in the middle.
- Conservative jurist abhor judicial activism and may be more like to let past rulings stand or only slightly tinker with hot button issues. This has been a common practice with the court when Justice Kennedy was serving. They often issued narrow rulings. The 2000 election recount ruling was one such example. It only applied to that particular situation and could not be applied to other similar issues in the future.
I, for one, feel the courts have garnered too much power in the past 50 to 60 years. That increase in power started with a good cause: civil rights. Those monumental court decisions were sweeping and necessary to right some long held wrongs in our society. However, as time went by and those issues were addressed, the courts’ new found power to steer societal norms got carried away. Roe v Wade and Obergefell v Hodges are two cases I personally see as judicial overreach. The Founders bestowed the 10th amendment upon us for a reason and I think the ignoring of that amendment for the past several decades has been harmful to our republic.
My hope with this new court, whether Kavanaugh is on it or not, is that the Supreme Court puts a check on its own power and doesn’t get carried and overcorrects past wrongs. So, if you are conservative I am sure you are giddy at the prospect of the changing court and if you are liberal you are probably feeling a lot of dread at this moment. It would behoove both parties to remember that the power pendulum swings both ways. Anything one side does when it has power can come back to bite them when the inevitable shift brings the other side into the majority. Everyone needs to remember that we all one country and that when things don’t go our way the right path to change is through fair and free elections and civil discourse founded in logical thinking.