persons are still just that—a minority. If the majority of the country doesn’t want to change a valid law, the Constitution does not give the courts authority to second-guess it.
Sometimes Congress has exercised its authority to change a law after the Supreme Court has recognized that judicial fiat is not the constitutional means to do so. When Lilly Ledbetter, shortly before her retirement, sued her employer for paying her less than it paid her male counterparts, her action was found to be barred by the statute of limitations. When the Supreme Court held that the statute required her case to be dismissed, the political reaction was immediate and hysterical.36 The majority was excoriated for not fudging the statutory deadline in Ledbetter’s favor. In this case, however, the desired change had the support needed for legislative action. Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which starts the limitation period over with each new paycheck. That’s exactly the type of response our system is designed to produce. Congress wrote a law. When the Court applied it as written, a new Congress wanted a different result and amended the law.
The same solution is available for constitutional disputes. Unhappy with what the Constitution says about speech, guns, abortion, or the scope of federal power? There’s an amendment process for that—intentionally difficult, but not insurmountable. The Constitution has been amended more than two dozen times, and it could be amended again if an issue were sufficiently important to the American people. It is no answer to say that causes that cannot garner the support of a broad majority of Americans should instead be enacted by a bare majority of unelected judges.
The notion that judges are competent to make even small improvements in the law leads almost imperceptibly to a much more expansive agenda. Once the judge is unshackled from the text set down by the people’s elected representatives (or their unelected regulators), he will wander wherever his own judgment leads him to implement the stated or even unstated intent of the law.
This flexible legal approach, applied to the Constitution, has resulted in the creation of broad new rights uncontemplated by those who framed and ratified the original document and its amendments. These new rights, in turn, have increased the range of activity governed by federal law. The influence of federal law, and of the courts that interpret that law, is therefore greater than it ever has been in history.
As the unelected bureaucrats of the burgeoning administrative state exercise de facto legislative power, the only remaining constraint on them is constitutionalists in the judiciary. At the same time, activists on the left cajole the judiciary to impose their favored policies—including revolutionary social changes—by an “exercise of raw judicial power,” as Justice Byron White described it, and since the Warren Court era, liberal judges have been happy to oblige.37
Is it any wonder, then, that the stakes in judicial appointments, especially to the Supreme Court, have become so high? Rather than being “the least dangerous branch,” as Alexander Hamilton predicted, the judiciary has become the forum where philosopher kings impose the final decision in our most divisive political and social disputes.38
Justice Scalia, observing the ever-intensifying confirmation process for Supreme Court justices in 2012, explained that the process has become more political because judges have become more political:
[A]s much as I dislike the spectacle of—of confirmation hearings now, I prefer them to the alternative. As long as the court is revising the Constitution, by God, the people ought to have some say and they ought to be able to ask the nominee, you know, what kind of a Constitution are you going to give us? That’s the most important question. Why shouldn’t they be able to ask that? So you know, I don’t like it, I would like to go back to the old system, but not if the Supreme Court is rewriting the document.39
Among the many issues on the liberal wish list that cannot be achieved through democratic means, one in particular motivated the opposition to Kavanaugh: abortion. It loomed over the entire confirmation process—from the nationwide speaking tour “Rise up for Roe” to the laser-like focus on the two Republican senators who support abortion rights, Collins and Murkowski. Planned Parenthood and NARAL were there every step of the way, financing protesters, TV ads, and celebrity appearances.
The nation’s abortion regime is dependent on the Supreme Court’s decision creating a federal constitutional right to abortion. Without that intervention, it is almost certain that a nationalized abortion