Nov 142020
 

Conservatives Now Have a Supreme Court Majority: Here’s How to Use It

Novemeber 14,  updated

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Republicans in Congress have disappointed their voters time and time again. So when Supreme Court Justice Ruth Bader Ginsburg died suddenly in late September, there was ample reason to fear that Republicans would cave to Democratic and media pressure and fail to confirm a replacement nominated by President Trump. But impressively, Republicans held the line, carried out confirmation hearings in a firm and efficient manner, and confirmed the president’s nominee.

Justice Amy Coney Barrett’s arrival on the Supreme Court provides patriotic and common-good conservatives with a serious opportunity. With a 6-3 majority for Republican appointees, one justice can defect to the liberal faction of the Court without handing the left a victory. Promising cases ruined by the betrayal of Chief Justice John Roberts will hopefully become a thing of the past. It remains to be seen whether Justice Barrett will be a reliable conservative or yet another disappointment. Hopefully, Barrett will fulfill the hope that conservatives have invested in her.

If Barrett lives up to the hype, then the next few years offer the best chance in a generation to restore the Constitution that America actually has, rather than imposing the hideous abomination left-wing judges have created for the country.

Another challenge to the Court’s Roe v. Wade abortion precedent is practically inevitable, and Coney Barrett’s perceived reliability on that issue is almost the sole reason she is now on the Court. But America has many other important issues besides abortion, and they shouldn’t be ignored. Conservatives have a Supreme Court majority. They should make use of it. Here’s how:

1. Stop affirmative action once and for all. 

Affirmative action is flagrantly unconstitutional and deeply immoral. The 14th Amendment explicitly demands that all citizens be assured “equal protection of the laws.” Discriminating against certain groups in hiring or college admissions solely based on skin color or sex is the exact opposite of that, and it is wrong. It is quite obviously a form of illegal discrimination. Yet for decades, cowardly Supreme Courts have refused to enforce the clear meaning of the Constitution when it comes to this issue.

Instead, they have issued flimsy rulings declaring that “diversity” concerns override the explicit text of the Constitution. In 2003, Justice Sandra Day O’Connor wrote that affirmative action would no longer be needed in 25 years. Seventeen years later, affirmative action has only become more entrenched. That is by design, of course. Racial discrimination is one of the countless ways that the left rewards its constituents while hurting its class enemies.

In the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

It’s time to give Roberts a chance to prove that he means what he says. Conservatives should bring another affirmative action case before the Supreme Court, and demand that the Constitution’s actual text be respected. Government discrimination based on race is illegal and wrong, in all cases, and weak justifications like “diversity” are no excuse for ignoring the clear text of the law.

This issue is particularly pressing, as the ascendant left is fighting to revive racial discrimination as a major force in American life. In California, Democrats are pushing Proposition 16, which would repeal the state’s ban on racial discrimination in academics and in government hiring. Billionaire Melinda Gates is openly saying that a future coronavirus vaccine should be distributed based on skin color:

The first people that need this vaccine are the 60 million health care workers around the world. They deserve to get it before anybody else. Then you start tiering.

Who needs it after health care workers?

In the U.S., that would be black people next, quite honestly, and many other people of color. They are having disproportionate effects from COVID-19. [Time]

Fedeal health officials are openly considering Gates’ idea. But don’t expect it to stop with coronavirus. As the cancer of critical race theory spreads throughout America via schools and woke capital, racial hierarchies in health care are inevitable.

The time to stop this is now. And only the Supreme Court can do it. Conservative plaintiffs should bring a direct challenge to the Court’s 1978 University of California v. Bakke decision, and seek a total ban on racial discrimination by the government.

2. Shore up American gun rights.

District of Columbia v. Heller is one of the Court’s most important decisions of the past 20 years. The ruling held that the Second Amendment means exactly what it says: That the right of individual citizens to keep and bear arms shall not be infringed. It was a landmark decision that made it dramatically easier for law-abiding Americans to own firearms in places like the District of Columbia or Chicago.

But as great as the decision was, it could have gone a lot further. While Heller blocked categorical bans on handguns, it still upheld other gun control measures. While it’s easier to get a concealed carry license in D.C. than it was before, it’s still extremely difficult, and Democrat-controlled city and state governments are constantly concocting new schemes to roll back gun rights.

The left’s aggression will only grow if Joe Biden becomes president. Biden has indicated that, if he becomes president, he will put Beto O’Rourke in charge of his gun control push.

During his disastrous presidential run, Beto O’Rourke vowed to ban popular rifles like the AR-15, and confiscate them from existing owners. If he’s in charge of setting gun policy for the Biden administration, then an aggressive gun grab is inevitable.

Meanwhile, in New York, the attorney general’s office is fighting to dissolve the NRA, which would remove the most powerful single organization pushing the right to bear arms. Democrats also want to make it easier to sue gun stores or manufacturers after shootings in order to drive up prices or put companies out of business.

It’s time the Court ended these dishonest and evil practices. The right to keep and bear arms is one of America’s most central and distinctive rights. It’s high time a conservative, originalist Supreme Court defended that right.

3. Weaken, or eliminate, disparate impact.

Disparate impact is perhaps the single most-destructive legal principle concocted in the past half-century of American life. Under disparate impact, individuals and businesses can be found guilty of discrimination without even treating some groups unfairly. If an entity’s policies create “unequal outcomes” for any recognizable group, then they are automatically found guilty of discrimination.

Of course, humans aren’t all the same, so every policy has a “disparate impact.” Instead of eliminating discrimination, disparate impact actually requires it, in the form of invasive interventions to “fix” disparities. Disparate impact is a crucial cog holding up the diversity and inclusion racket, as companies, organizations, and local governments are compelled to shape policies to avoid ruinous anti-discrimination lawsuits.

In some cases, disparate impact exists explicitly by law. But in others, it’s simply an invention of the courts. In 1971, in Griggs v. Duke Power Co., the Court found a company guilty of discrimination simply for favoring those with a high school diploma for hiring and promotion. In 2015, the Court (in one of Anthony Kennedy’s awful 5-4 alliances with the left) held that the Fair Housing Act imposed disparate impact on the entire housing sector, even though the law said no such thing.

Kennedy is gone now, and his jurisprudence should be gone with him. The Amy Coney Barrett appointment may provide conservatives their last, and best, hope to restore sanity to American law, and dispense with the fiction that any inequalities in American life can only be blamed on hidden discrimination.

4. Curb birthright citizenship.

For decades, the left has cynically used illegal immigration as a long-term power grab at the expense of actual American citizens. Their power grab has been effective because existing law grants automatic citizenship to anybody born on U.S. soil — even the children of illegal immigrants. In fact, even the children of tourists get citizenship. Thousands of foreign nationals exploit this loophole every year.

The Trump administration has issued new regulations meant to curb so-called “birth tourism,” but the truth is that no edicts should even be necessary. Universal birthright citizenship itself is a flagrant overreach of the Constitution’s actual text. The Fourteenth Amendment merely guarantees that those “born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Amendment was meant to grant citizenship to freed slaves in order to prevent the perpetual denial of citizenship to a burgeoning American underclass. There is no reason to believe that automatic citizenship extends to the children of tourists, or those living in America illegally. Those individuals are subjects of a foreign power, not the United States, and it’s past time the Supreme Court ruled accordingly.

Should Donald Trump win another term, he should adjust federal policy to clarify that birthright citizenship only extends to those legally within the United States, and challenge the Supreme Court to back him up. Even with the current makeup of the court, success is unlikely, but Republicans are also unlikely to ever have a more sympathetic Court.

5. Break the left’s totalitarian lockdown system.

In May, the Court’s liberal faction, led by Justice Roberts, upheld California’s thuggish, targeted closure of churches in response to the coronavirus pandemic. Five months have passed, and California is still oppressing churches and families while giving a pass to behaviors the elite left supports, like rioting. Even now, more than 15 million Californians are barred from attending church services indoors because of the governor’s decree. This is a flagrant violation of the Constitution’s guarantee of free exercise of religion. The Court’s liberal faction doesn’t care. Like the rest of America’s disgraced elites, they bought into the phony panic over coronavirus and used it as an excuse to sweep aside Americans’ rights.

But with Justice Ginsburg gone, so is Roberts’ pro-lockdown majority. Conservatives should immediately re-challenge the nation’s coronavirus restrictions, and demand their rights back immediately.


Of course, many weak conservatives will call for restraint in the years to come. They will panic at the idea of the left packing the court, and urge conservatives to meekly submit. They should be ignored. The left has been so radicalized that if they have the votes to pack the Court they will do it no matter how conservatives behave. But more importantly, it is useless to govern based on fears of what the opposing party may do in response. Politics, like warfare, favors audacity. And in the courts, the time has come to be audacious.

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