JOHN YOO: Barrett and Kagan’s safety plea exposes the left’s war on the Supreme Court
"Maybe I lack imagination, but I didn’t expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one," Justice Amy Coney Barrett told Congress on Monday.
Justice Barrett was explaining in vivid terms why the Supreme Court had requested an additional $14.6 million, as part of its $228 million budget request, for enhanced security.
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Her fellow witness, Justice Elena Kagan, observed that threats against the Supreme Court had risen 38% this year. Justice Barrett herself had suffered a "swatting" attack earlier this year, in which someone falsely reported an armed shooter at her house. More alarmingly, an assassin attempted to kill Justice Brett Kavanaugh after the 2022 leak of the court’s Dobbs opinion, which overturned Roe v. Wade and its creation of a constitutional right to abortion.
While the justices are often willing to write hundreds of pages setting out their opinions on constitutional law, they left unanswered the question of why threats have risen so sharply.
The answer seems clear. Left-wing activists and leaders have waged war against the court. Senate Minority Leader Chuck Schumer, D-N.Y., for example, warned Justices Kavanaugh and Neil Gorsuch against overruling Roe. He appeared on the front steps of the Supreme Court and threatened that they would "pay the price" and "won’t know what hit [them]."
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Sen. Sheldon Whitehouse, D-R.I., has attempted to raise ethical doubts about the justices because they allegedly accepted gifts from wealthy benefactors.
Virtually all the major leaders of the Democratic Party agree with the idea of packing the Supreme Court because they disagree with its decisions. Former Vice President Kamala Harris declared in May that Democrats should consider expanding the court with liberals and punishing conservatives. "This is a moment where there are no bad ideas," the 2024 Democratic presidential candidate said on a podcast.
These attacks stem from the left’s larger attack on the Supreme Court as an agent of the Trump administration. Schumer, for example, often criticizes what he dubs "the MAGA Supreme Court" for transforming government agencies into "members-only clubs for his golf buddies and cronies." House Minority Leader Hakeem Jeffries decries "the corrupt conservative majority on the Supreme Court appointed by Donald Trump" for taking "a blowtorch" to civil rights laws.
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But the Supreme Court term that just ended demonstrates — yet again — that the court does not decide cases with an eye to partisan winners and losers. President Trump lost on several of his signature policies: in Learning Resources, the court struck down the White House’s universal tariffs as beyond the delegation of international economic power; in Barbara, a 6-3 majority affirmed birthright citizenship over a Trump executive order; in Cook, the justices blocked Trump’s removal of a governor on the Board of Governors of the Federal Reserve System.
Trump only prevailed when his positions aligned with the Roberts court’s long-term agenda. In Slaughter, Trump won the power to fire the heads of administrative agencies, but the justices had been steadily expanding the president’s removal power for the last 15 years. In RNC, the court struck down more limits on the ability of parties to spend campaign funds in coordination with candidates, but only because the justices have steadily treated campaign funding as speech. In Callais, the Trump administration won the end of the use of race in congressional redistricting, but only because the Roberts court has steadily ended the government’s ability to use race in making decisions.
The court does not think in terms of Republicans and Democrats. It instead fights over much deeper differences between conservatives and progressives on constitutional interpretation.
The conservative justices generally believe that the court should interpret the Constitution based on the original understanding of its ratifiers; the liberal justices would allow contemporary ideals — whether political, economic or philosophic — to govern as well. These are the types of disputes appropriate to the Supreme Court, and to allow it to interpret and apply the Constitution free from political influence, the Framers gave federal judges lifetime tenure with undiminished pay.
But to make short-term political gains, the left would sacrifice the independence of the courts. Manipulating the size of the court in response to its decisions is just an attempt to dictate the desired outcomes to the justices.
Threats against them are merely another political tool to pressure the court to change its ways. These threats, encouraged by the heated rhetoric of Democratic leaders, along with court-packing, are themselves of a piece with the broader progressive attack on constitutional structure.
Democrats also want to abolish the Senate filibuster, which bolsters the constitutional structure by slowing legislative speed and enhancing deliberation and bargaining, so that the Senate will more closely resemble the House; add the District of Columbia and Puerto Rico as states, unbalancing the Senate; and enact nationwide voting legislation, thereby undermining federalism.
Progressives believe that they hold the keys to an enlightened socialist utopia. Because they are convinced that they know the only true political ends of society, they will not allow the structural limits on mob democracy, imposed by the Framers, to stand in their way.
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If the court will not permit the Constitution to be used to impose liberal theories of rights nationwide, progressives are happy to do away with the court’s independence. If the Senate will filibuster a wealth tax, then expand the Senate with blue states. If the president follows a restrictionist immigration agenda, then do away with the Electoral College, too.
Progressives, however, err in their attacks on the Framers’ restraints on pure democracy, embodied in a Supreme Court that interprets a written Constitution. If the last 10 years should have taught them anything, it is that they do not have the permanent support of the majority of the American people. When a majority of Americans support a president and Congress who will narrow or reverse the favored rights of progressives — witness the birthright citizenship case — they will be fortunate that an independent Supreme Court will hear their pleas. But that would require progressives to weigh the long-term benefits of a written Constitution against short-term partisan gains.
That may be hoping for far too much.