What if Democrats win control over everything but the Supreme Court?

What if Democrats win control over everything but the Supreme Court?
© Getty Images

Let us discuss this hypothetical scenario which, if these trends continue, could soon be reality. The Democrats win the presidency, recapture the Senate, and keep the House, while Amy Coney Barrett is confirmed and solidifies the conservative majority on the Supreme Court.

This would not be the first time that the Supreme Court will have been in opposition to the popularly elected branches of government. During our history, the Supreme Court has been the most conservative branch, often slowing down the progress of the more liberal elected branches, as it did with the New Deal in the 1930s. For much of our history, there have been tugs of war between the elected branches and the Supreme Court. Now we can perhaps anticipate more of that in the near future.

The Supreme Court has become the focus of attention by conservatives. Despite their claims to support judicial restraint and also oppose judicial activism, conservative legal groups have turned into the most significant activists seeking to overturn liberal Supreme Court precedents, such as those regarding the right of a woman to decide to have an abortion, as well as liberal legislation, such as the Affordable Care Act.

ADVERTISEMENT

During the recent confirmation hearing, Senator Sheldon Whitehouse laid out his chart showing how Justice Samuel Alito encouraged conservative legal groups to seek the overturning of a precedent four decades earlier that favored unions. After many efforts, they had finally succeeded when Justice Neil Gorsuch was appointed to the Supreme Court. We will view more of this if Democrats control the executive and legislative branches with liberal programs, and the judicial branch pushes back.

Liberal groups, which have been accused of fomenting judicial activism, would then become champions of judicial restraint, trying to keep cases away from the Supreme Court. Neither side would pass the “shoe on the other foot” test when it comes to neutral principles regarding the role of the Supreme Court. Both would employ whatever tactics will serve their partisan goals with little regard for the future implications.

Consider the issue of abortion. Since the decision for Roe versus Wade in 1973, conservatives have argued that abortion is a legislative matter which should be left to the elected branches of government and kept away from the judiciary. But if Democrats were to control the legislative process, they might well enact a national right to choice law that guarantees that every woman in the country carries the right to have an abortion.

Such a law would be challenged by conservatives, who would argue that Congress has no authority over abortion and that it must be left to state legislatures. Even if Democrats were to take control of state legislatures and enact local right to choice laws, we would hear from conservatives that the Constitution contains a right to life for the fetus that precludes even state legislatures from affording women the right to end the life of the fetus. This issue could also reach the Supreme Court.

Likewise, if a national right to marry law, regardless of gender, were to be legislated by Congress, conservative activists would challenge it as going beyond the power of the federal government. They would also challenge, as some already are, state legislation that recognizes gay and transgender rights as violating the religious liberties of people charged with enforcing such local laws that were passed against discrimination.

The conservative cries that courts should not make laws or undo the will of the people are forgotten when any legislation reflecting the will of the people, such as the Affordable Care Act, is seen by conservatives as just incompatible with their ideology. They will come up with arguments with the commerce clause of the Constitution and other provisions, some of which are valid and others not so much, restricting the authority of the executive and legislature branches in control by the left.

Depending on the election results, be ready for a potential reversal of tactics, as conservatives become judicial activists challenging liberal executive actions and legislation, while liberals become advocates of judicial restraint seeking to prevent the courts from overruling these executive and legislative actions taken by the Democrats.

So getting their way, based on where the power lies at any given point in time, is the driving force for both sides of the political spectrum. Partisan ends justify hypocritical means, while principles are for losers, or so said Machiavelli. So say the right and left activists here today.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book is “The Case For Liberalism in an Age of Extremism” available on Kindle. Follow him on Twitter @AlanDersh.