On Meet the Press, Vice President Kamala Harris denounced the conservatives on the Supreme Court as “activists” due to their decision to overturn Roe v. Wade. She objected that the decision ignored decades of precedent and “we are suffering as a nation because of it.” The common attack on the integrity of the justices is beneath the office of the Vice President and only legitimates the unfair attacks on these justices who are fulfilling their oath to uphold what they believe are the dictates of the Constitution (as did their colleagues in dissent in Dobbs).
This week, I had the honor of speaking at the annual judicial conference for the United States Court of Appeals for the Tenth Circuit. I spoke on the recent religion cases but also about the criticism of the Court over its decision to overturn Roe. Indeed, this issue came up in my exchanges with Professor Elizabeth Sepper of the University of Texas at Austin School of Law. Professor Sepper warned that the Court was serving as a “tool” of the conservative religious right and shattering long-standing precedent.
Chief Justice John Roberts also spoke at the conference (as did Associate Justice Neil Gorsuch). Roberts began his remarks by expressly disagreeing with those who questioned the “legitimacy” of the Court simply because they disagree with its constitutional analysis.
In her interview, Harris declared
“I think this is an activist court. We had an established right for almost half a century, which is the right of women to make decisions about their own body as an extension of what we have decided to be, the privacy rights to which all people are entitled. And this court took that constitutional right away, and we are suffering as a nation because of it.”
The fact that the Court overturned a long-standing precedent does not mean that it is an “activist court.” As I have previously noted, justices take an oath to uphold the Constitution and to “faithfully and impartially” interpret the law. It is bizarre to argue that they should vote for some interpretation of the Constitution that they believe is wrong and unfounded just to preserve precedent. If that view had prevailed in the past, Brown v. Board of Education would have upheld the racist precepts of “separate but equal” in Plessy v. Ferguson. When it comes to fundamental rights, justices should faithfully interpret the Constitution.
There may be a greater hold of precedent in statutory interpretations (since Congress can address erroneous or conflicting interpretations). However, in the interpretation of the Constitution, justices are fulfilling an oath to “support and defend the Constitution of the United States.” Stare decisis may protect the Court as an institution from public criticism, but that should not override the duty to correctly and faithfully interpret the Constitution.
As I noted in my exchange with Professor Sepper, the liberal justices have shown the same willingness to overturn precedent when they have a majority or to create new doctrines with sweeping social and political implications. The left did not denounce the Warren Court when it was handing down such sweeping new rulings. It did not denounce Justice Breyer when he wrote routinely voted in dissent on death penalty cases despite decades of precedent supporting the right of states to impose capital punishment.
There is little doubt that the liberals on the Court would overturn Heller and the Second Amendment cases if they had a majority. Indeed, while denouncing the “activist” conservative justices for overturning cases, Democratic senators demanded that cases like Heller and Citizen’s United be overturned. During the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission. Democratic groups often decry the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.
Justice Sonia Sotomayor has assured liberals in public speeches that “mistakes” in such high-profile opinions can be “corrected” by the Court in later decisions. In other words, when a majority forms with an opposing jurisprudential view. Does that make her an activist justice according to Vice President Harris?
Dean Erwin Chemerinsky celebrated that “Justice Sotomayor wrote a dissent, in which she said, ‘Trinity Lutheran v. Comer was wrong then, and it’s wrong now.’” While that is a paraphrasing of the justice, does that mean that she has discarded the hold of precedent for politics? Of course not. She is interpreting the Constitution consistently and faithfully according to her own jurisprudential viewpoint.
In the recent Carson opinion, Sotomayor makes clear that “this Court should not have started down this path” in Trinity Lutheran and clearly rejects its hold on the Court. Not surprisingly, Chemerinsky approves of that position.
Yet, Chemerinsky denounced the conservative justices as “partisan hacks.”
Hillary Clinton declared that she would only nominate justices who would overturn Citizen’s United. Would those justices then be “partisan hacks”?
None of this means that Harris should not disagree with the Court or reject its reasoning. As Chief Justice Roberts said this weekend, that is fair game. Rather it is the attack on the integrity of the justices that is beyond the pale in my view. The views in Dobbs were not sudden or opportunistic. The Court had continually fractured over basis for Roe, which was itself effectively gutted in Casey. The series of 5-4 rulings had dissents expressing precisely the objections that eventually secured a majority in Dobbs. The ruling was consistent with the long-standing jurisprudential views of these justices.
Harris’ views of the integrity of the Court would be more credible if she did not steadfastly refuse during the election to denounce court-packing schemes. That plan supported by democrats like Sen. Elizabeth Warren is a raw and direct political manipulation of the Court. Yet, Harris refused to oppose such calls during the election.
Unfortunately, the attack on the Court today is likely a foreshadowing of the election to come in the use of rage politics on both sides. This failure of leadership has fueled a crisis of faith in our system. Both her office and the public deserve better from the Vice President.
Only a Democrat could get away with asinine legal analysis or critical thinking like that of Sheldon Whitehouse who in the same hearings will demand honoring stare decisis in Roe and the overturning of Citizens United. Only a Democrat will get no pushback from their compliant media morons as they make arguments that would get them an F in an 8th grade debate format.
The left’s constant demand to never lose has become a serious issue with our nation’s comity and political unity. They almost never lose and when they do they continue the fight until they ultimately prevail. I have an example of this phenomenon in microcosm: In my former home state, MA, the very liberal town had a far left activist old lady that was demanding that they ban water bottles, got it voted on and promptly lost. The town then had a second vote whereupon it lost again. The town then had a third try at this far left idea and it finally won by a slim majority whereupon it was never voted on again. THEY NEVER LOSE AND WHEN THEY DO THEY FIGHT AND FIGHT UNTIL THEY PREVAIL. Look at No Bail laws, nobody likes them, they are empirically causing harm and violence to our citizens and yet they are not only prevailing they are becoming the law in more and more places. Check out the new laws in IL if you want a chill down your spine. One little tidbit is that when the police put an ankle bracelet on an accused as they monitor the GUY they cannot begin to pursue the perp until after he is in violation FOR 48 HOURS! That’s right, the police monitoring the violent guy have to wait 48 hours before they can even pursue the guy whose monitor is saying he has left is assigned area.
Vice President Harris calls anyone on the Supreme Court that votes against the beliefs of the left’s hive mind an activist when by definition she is the activist (“a person who campaigns to bring about political or social change”). The Supreme Court Justices don’t campaign for change they are simply justices trying to do their best to correctly interpret the Constitution in context with cases presented to the court. It appears to me that Vice President Harris doesn’t give a damn about the actual constitution, it’s a barrier prevent her from getting what she wants, she seems to want the court of public opinion (aka liberal mob rule) to rule the roost.
This attack on the integrity of Supreme Court justices by Vice President Harris is signature significant of a political hack.
Well said Steve . . . One wonder if Vice President Harris has a copy of Websters dictionary… Much less Black’s Law dictionary?
RE:”. One wonder if Vice President Harris has a copy of Websters dictionary… Much less Black’s Law dictionary?” My wife, a retired attorney, who practiced law for 20 years, ponders on the fact that this tongue-tied nitwit actually was graduated from a school of law, and ACTUALLY practiced law, APPOINTED as an Attorney-General for Alameda County and the City of San Francisco, She was ELECTED to the position of Attorney General of her state and to the Senate, THAT is no surprise, in that she is now VP, notwithstanding the fact that she was down and out as a candidate for POTUS. Every time Harris endeavors to utter a sentence or express a complete thought, my wife wonders how Harris might have fared under the steel glare and sharp. barbed tongue of the fictitious Kingsfield, had she faced such a personage in real life, either in law school or beyond. Individuals of that ilk ARE out there. My wife is satisfied that, in the present day, complexion and gender can truly make a silk purse out of a sow’s ear…
Harris is a product of the racism coming from the left.
RE:”Harris is a product of the racism coming from the left.” It’s the same old story…’One person’s racist is another person’s Freedom Rider.’ You can’t tell the players without a complexion card. The irony is that those who are calling the kettle black have not only escaped the plantation,and risen to the level of overseer, doing their best to keep the rest of ’em down there..
Anonymous wrote, “One wonder if Vice President Harris has a copy of Webster’s dictionary… Much less Black’s Law dictionary?”
Activists like Kamala Harris really don’t give a damn what words actually mean, people like her b-a-s-t-a-r-d-i-z-e and misapply words all the time, it’s S.N.A.F.U. for the 21st century political left and then they kicked it into overdrive after the 2016 presidential election. We’ve seen this b-a-s-t-a-r-d-i-z-a-t-i-o-n and misapply of words constantly from political left activists with words like racist, racism, misogyny, xenophobia, systemic, fascism, fascist, Nazi, white supremacy, peaceful, protest, insurrection, collusion, terrorist, danger, silence; the list goes on and on.
https://stevewitherspoonhome.files.wordpress.com/2020/07/silenceviolencehatemurder.jpg
These people have been brainwashed into an absurd totalitarian cult by constant propaganda proving that bias makes people stupid.
Good points, Steve! I believe that the problem is exacerbated by the crisis in contemporary journalism. Most consumers of the mainstream media today are developing an extremely superficial understanding of current events, including decisions of the U.S. Supreme Court. It almost appears that participants in broadcast media are reading from the same script. The sound bites are repeated again and again. It may have begun decades ago with Operation Mockingbird launched by the CIA during the cold war. The trajectory is dangerous because there appears to be little that serious journalists can do to reverse the course. Take a public figure like VP Harris who excoriates SCOTUS in response to an opinion that she does not like. She was likely 9 or 10 years old when Roe v. Wade was decided. Even though she is a law school graduate, it is not clear that she has read Roe, Casey or Dobbs. Many Constitutional scholars believe that the SCOTUS opinion in Roe was deeply flawed – and, in fact, a stretch. Yet the mainstream media has convinced American women over nearly five decades that there is a constitutional right to an abortion that has now been taken away. It is disconcerting, but not surprising that VP Harris would be stirring the base with her reckless rhetoric. It appears that the leaders of the Democrat party are not inclined to discuss the current issues that many of us care about.
“This failure of leadership has fueled a crisis of faith in our system. Both her office and the public deserve better from the Vice President.”
Agreed. However, Kamala Harris is not a leader.
Nor is she a person of character capable of anything other than her petty, partisan, small-minded, abrasive, self-serving hack-tivism. But hey, she’s a woman of color! She obviously does have some political skill, as evidenced by how far she maneuvered herself –an unlikable, talentless, tone deaf hack — right into the VP spot.
Recall how Kamala attacked Joe Biden on the debate stage and accused him of being a racist. Her campaign even had the t-shirts ready to go on her website: “That little girl was me.” After which, Dr. Jill told Kamala to “go F herself.” But, since Kammy is Barack’s girl, Joe was told to ‘choose’ her as his running mate. And here we are, a total failure of leadership. Who could have seen this coming?
Further to Jonathon’s thoughts, the complaints he speaks to reveal an unforgivable misunderstanding of system design: the build of the Constitution itself. Let’s use a commercial airliner like a Boeing 777 as a design example. In flight, turning the yoke to roll the plane only lets it roll 30 degrees. That’s the fly by wire software checking and balancing the flight control surfaces so the wings keep lift and the plane keeps flying. The pilot’s leadership is constrained by the system design. The Framers saw the need for for an independent Article lll judiciary to do that kind of job in the plan of government they gave us, and which we accepted. November is coming. We need to demand at the voting booth leadership that demonstrates understanding of the system design in which the candidates seek to participate.
Kamala is one heartbeat or breath from being President.
The Democrats sure know how to pick their party’s leaders…..and in the process clearly demonstrate the folly and dangers of Identity Politics!
RE:”The Democrats sure know how to pick their party’s leaders” Gender and complexion ruled, nothwithstanding the fact that Harris was down and out for the count BEFORE the primary. All the Democrat criticism of the “Orangeman’ pales in the light of the hypocrisy that an incompetent who couldn’t string two words together to make a respectable public comment was deemed qualified to be next in line to the Presidency..
No decision should Ever be anything but the textual, original, intent of our Constitution.
Everything in our lives is colored by activist liberal courts.
Four decades of universal leftist rulings that trashed our most precious principles.
But now the high court is activist.
Some of the court’s “activism” derives from its view that the roles of the federal and state legislatures have been undermined. Dobbs reiterated and applied limits on the reach of the due process clause, to the benefit of state legislative power. In West Virginia v EPA, the vaccine mandate OSHA case and the eviction moratorium case, the court applied the major question doctrine to cut back on the power of the administrative state, to the benefit of Congress.
Generally speaking, the court has been willing to protect and expand individual rights when they are enumerated (e.g., 1st and 2nd Amendments), but solicitous of legislative authority when they are not. Within the 1st Amendment it has generally expanded the scope of the free exercise clause while limiting the scope of the establishment clause.
The affirmative action cases this term will be interesting, in that the court may for the first time adopt the first Justice Harlan’s view that the constitution is “colour-blind.” This would represent an expansive interpretation of a general provision — the equal protection clause — to create an unenumerated right to be free from racial discrimination regardless of its stated purpose to promote racial balance.
A free country has the constitutional ability to destroy itself. All it takes is the right mix of message, media, and corruption.
Democrats like to pretend that the Jan. 6th rioters were “insurrectionists” so they’d have a semblance of law and order to campaign on. But none of those hapless protesters are anywhere near as dangerous to our democracy as the Democrats who are now sabotaging the legitimacy of the Supreme Court. Once that Constitution goes, the country will be plunged into fascism. And if that happens when the Democrats are at the wheel — god help us.
Harris and her ilk aren’t angry that the Court may be an activist court — they’re only angry that there are not enough of their activists on the Court. Democrats have pushed this country into an “either-or” position, where the only options are agree with them or split. That split may be coming if the current crop of incompetent liars and swindlers is all they’ve got.
RE:” Does that make her an activist justice according to Vice President Harris?” Her voting record is clearly partisan. Sotomayor has been NOTHING BUT an activist justice throughout her tenure.
Apparently Vice President Harris has been too busy fixing the root causes of the immigration crisis, to actually read the Dodd decision. So, in the unlikely event she reads Professor Turley’s blog, here’s the elevator version . . . the Dodd decision did NOT outlaw abortion, it simply remanded abortion parameters to the states.” (You’re welcome Ms. Vice President)
Good commentary, Ken 9350!
I expect no less at this point. Other than the idiotic green new deal in its various iterations, we haven’t seen anything resembling policy from the Democrats in a long, long time, just efforts at control and persecution of dissent. This is not an American party anymore. I hear the complaints all the time these days, everywhere I go, but people will not change their voting behavior. In a country this large political consequence is either in people’s minds something hypothetical that only impacts others, or a figment of a bogeyman that exists only in their imaginations to justify their own fears. Meanwhile, the Dems are dead serious about strangling individual liberty and fairness out of existence, something even the lockdowns weren’t enough to impress upon many.
The saddest part to me is that our system is actually quite simple and easy to understand. History already tells us how this turns out if we don’t step on the brakes. I suppose that is why instead of teaching it, modern Progressives endeavor daily to eliminate and rewrite it.
The green new deal is set of aspirations with no path to implementation masquerading as “science”. People should laugh when someone brings it up. When your plan is we will invent something, you have no plan.
Leftist are scared.
Why is simple. The leftist agenda always fails to attain congressional approval. The only way the leftist get anything, is using judges, or executive branch use of emergency power.
Citizen United is an aberation. Dems with a clearly unconstitutional law, and enough Republicans to go along fishing for votes and more Republicans knowing the law would never get past SCOTUS
But the left can pass a law to limit political speech. The 1st ammendment…”congress shall make no law”. somehow confuses a leftist. That’s all you really know about leftists. But a person that goes off alone and offers a prayer on school property can get fired. Leftist see that as exactly the same as congress making law.
Strange how the left and present day Democrats like to sweep under the table the attempt by FDR to pack the court. That attempt, which many in his own party opposed, and his attempt to purge the conservative democrats from the party failed in the midterm elections of 1938 and cost him about 80 seats in the House and many seats in the Senate. The democrats still had majorities in both houses but the republicans plus the conservative democrats brought the New Deal to an abrupt end.
FDR had also raised taxes and was in trouble but WW2 started in 1939 and suddenly everyone wanted arms and material from the US. It ended the Depression and saved a very vulnerable Roosevelt in 1940.
Extreme policies in the first 2 years cost Bill Clinton the House and Senate in 1994 and Barack Obama the House in 2010. It is a fair warning. It is difficult to transpose those eras into our era but it is a good warning that both sides should remember.
Kamala Harris and Elizabeth Warren seem to forget that extreme short term gain often leads to long term pain.
They have totally failed to consider what the other side will do in response. Even in War the opponent gets a vote.
RE: Classic Democrat propaganda. It’s only an ‘activist’ court when her ox is being gored.
Typical progressive. Doesn’t get her way, throws a tantrum.
Her remarks were disgraceful. Was that the attack on our democracy that the President warned us about in his campaign speech from Constitution Hall?
Thankfully it was Kamala Harris so few heard it and even fewer gave it any credence.
Everyone knows Democrats are lying frauds. Biden first called MAGA Republicans semi-fascists. Then he gave a national speech where he lied and smeared them again saying they are a threat to democracy.
You know Biden and Democrats are lying frauds because if they believed their lies that MAGA Republicans are semi-fascist and threats to democracy, then they never would have spent $46 million in Republican primaries to try to help MAGA Republicans win nominations.
https://www.foxnews.com/politics/biden-demonizes-maga-republicans-dems-spent-million-pro-trump-candidates-win-primaries
They are power mad authoritarians. They lie about everything. They are evil. That’s not meant to be inflammatory or gratuitous. It’s a statement of fact.
Butchering preborn babies until the moment of birth and calling it “women’s health” is evil. Mutilating the sex organs of underage children and calling it “gender affirming care” is evil. Allowing millions of illegals to invade the country for the purpose of depriving native American taxpayers of the social services they pay for with their taxes is evil.
Kommie Harris is too stupid to know how stupid she is