Whither the Judicial Wars Under President Joe Biden?

Here’s a nice thought: maybe leftists can stop treating judges as legislators.

Liberal Democrats were shocked when President Donald Trump appointed conservatives to the federal bench. True, there were vacancies. He was the duly elected president. The Senate had the constitutional authority to approve nominees. But whatever were Republicans thinking? This was outrageous misconduct, screamed people who had welcomed the activist liberal court of the 1960s and 1970s. They lionized jurists who ignored the text in the search for penumbras and emanations upon which to reach progressive policy results. New “rights” were discovered, almost daily it sometimes seemed, highlighted by the 1973 abortion case Roe v. Wade. Subscribers, click here to read the full magazine. Not a subscriber? Click here to become a Patriot member today and receive access to The American Spectator in print and online! But liberal judges could not ignore the text entirely: too many average folks still venerated the Constitution and believed that it had some relationship to the operation of the U.S. government. So pretense was maintained. Experienced progressive lawyers would at least mention a legal document before joyously making up their preferred result. Then a vote was duly held, like in any other legislative body, and the Constitution was magically amended. Author Michael Rips contended, “The choice of any interpretative scheme is inherently arbitrary.” But that is flagrantly untrue. There are two broad jurisprudential approaches: put into effect to the best of your ability the law as written or make up what you want the law to be. That all answers will not be obvious doesn’t change the fact that, for judges, only the first objective is valid. Republicans spent the 1960s railing against activist judges. But the GOP had no effective strategy to transform the judiciary. Richard Nixon made four high court appointments. Harry Blackmun trended left. Chief Justice Warren Burger was an ineffective moderate conservative. Lewis Powell and William Rehnquist possessed more serious judi...