The other day, Chris Murphy was on MSNBC with illiberal popinjay Mehdi Hasan, triumphantly discussing the left’s coordinated smear campaign to destroy the legitimacy of the judicial branch of the United States government.
Then, this insane claim came out of his mouth:
Listen, the reason Ted Cruz and Republicans are, you know, so out of their minds about protecting this Supreme Court is because the Supreme Court is the new right-wing legislature for this country. Republicans’ agenda is so unpopular in Congress — banning abortion, getting rid of background checks, requirement eviscerating voting rights laws — that they can’t pass it through the majoritarian institutions, so instead Republicans and the right wing have outsourced legislating to the Supreme Court. And so when there is a potential that they are going to lose their grip on the Court, they get their backs against the wall.
What in the hell is this person talking about? Are MSNBC viewers under the impression the Supreme Court banned abortion? It was Roe v. Wade that concocted a “right” unmentioned anywhere in the Constitution and then, by fiat, decreed it the law of the land without a debate or vote. Dobbs handed the issue back to voters. Or, more precisely, it did what Murphy contends the high court should be doing. Roe created law by decree. Obergefell created a law by decree. The left has spent decades relying on the court to bypass the electorate.
That Murphy is unable to come up with a single example of the Supreme Court legislating from the bench is telling. SCOTUS never got “rid of background checks” — nearly every gun sold in the country goes through one. Nor has the court ever made a “requirement eviscerating voting rights laws,” whatever that means.
Notice that Murphy frames “protecting” the Supreme Court as corrupt behavior. The Connecticut senator says that conservatives have a “grip” on the Supreme Court as if a duly elected president hadn’t nominated all these justices and a duly elected Senate hadn’t confirmed them using the prescribed constitutional method that’s been in place since the founding.
Murphy’s problem isn’t that the court is negligent but that it occasionally upholds constitutional limits on state and majoritarian power — which is the job of the judiciary. In Federalist 78, Hamilton writes that limiting state power can only be “preserved in practice” through “the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
Then again, mentioning the Federalist Papers is so jejune these days, right? No one cares. Take this column by Edward Luce, who compared justices — those who pay “fidelity to the alleged wishes of long-deceased men” — to the Iranian mullahs. The piece reads like something an edible-popping college sophomore might publish in his political zine, not something you’d find in the (once-)prestigious Financial Times. Yet, this is probably where most of the contemporary left is today.
What could long-deceased men possibly have to tell us about the world when we have mobs that can make snap decisions relying on the vagaries of contemporary politics and emotion? I’d say that Luce and Murphy confuse, or pretend to confuse, hypermajoritarianism with “democracy,” but that would be giving them far too much credit. I doubt either could offer a coherent definition of “democracy.” It’s just Calvinball all the time. If the process doesn’t generate the correct results, the process is for suckers. If there’s a single institution that the left isn’t running, it needs to be destroyed.
I ran across a Substack the other day by a writer named Michael Smith, headlined “The Real Insurrection,” which pretty much sums up my feelings about this moment. “If they,” Smith asks, “are successful in delegitimizing the Supreme Court, the way they have ruined every other foundational institution, where do we go from there?” The answer is that “There is just no coming back from something like that.”
There isn’t. That’s the point. Murphy and others are ensuring that one day soon, states will start ignoring the courts, and the last remaining institution that contains unfettered statism will be rendered useless. Not only would this open the floodgates for government abuse, but it would also destabilize the nation in unprecedented ways. It is an effort far more dangerous to American “democracy” than any of the boogeymen that are supposed to keep me up at night — whether it’s the QAnon Shaman or “Christian nationalism” or Tucker Carlson, etc.