"Of course my story is not an allegory of Atomic power, but of Power."
The Letters of J.R.R. Tolkien #186
Well, here we are in another Supreme Court confirmation death-match. Yay! It’s so great to see our leaders behaving in such a rational and fair manner. It makes me feel all warm and fuzzy inside! (Oh wait, that’s nausea. Never mind.)
Last time it was Brett Kavanaugh’s turn in the hot seat. Democrats went so far as to accuse this highly respected accomplished lawyer and family man of serial gang rape! I couldn’t believe what I was seeing. It defied explanation.
And Kavanaugh was just the latest. This slimy Kabuki theater has played-out every single time a conservative justice has been named, but never when liberal ones are. Why is that? And what could possibly turn these seemingly normal looking Democrat Senators into such vile sub-humans?
I found my answer in the pages of J. R. R. Tolkien.
If you’ll recall, "The Lord of The Rings" is a story that revolves around the fate of a certain magical ring in a fantasy world known as Middle Earth. Though there were twenty of these rings forged, the story is about one ring that has power over all the others. Whoever possesses it has super-powers like immortality, invisibility, and under certain circumstances, totalitarian power over Middle Earth. But there’s a serious downside to bearing the ring; so intoxicating and addictive is its power, it can transform its weaker owners into unrecognizable, twisted, slimy, deranged, creatures.
And that’s exactly what happens when it comes to the absolute power of the courts. The essential challenge for anyone who wears a black robe is to subordinate their personal agenda to a document written over two hundred years ago. That's the job of a Justice under our system. It takes an extraordinary amount of self restraint to put the original intent of the U.S. Constitution above one's own politics. Moreover, just like the ring that grants immortality, Justices serve as long as they can breathe. Even Presidents don’t have that kind of power for that long.
Imagine how intoxicating, tempting, and corrupting that power can be for a Justice, or for a Senator involved in confirmation? Don’t like a law or policy? Just change it at the court! All you need is five like minded Justices and you have totalitarian power over all social, economic, and political policy in the U.S.. No need to go through the icky time-consuming process of passing laws or amending the Constitution. Just have the right people put on a robe, wave a magic pen, and voila! Imagine how much strength of character one would need to resist that temptation? Imagine having the magic ring in your pocket and resisting its allure out of fealty to our founding principles?
Democrats long ago realized they needed the courts for their agenda to succeed. And what is that agenda? It’s often referred to as “progressivism”, which translates to progressively more power to the government, going well beyond what the Constitution envisioned. Ask yourself this, have you ever seen a Democrat proposal that didn’t grow the power and scope of the federal government? I don’t think you have. Certainly not under Obama. Have a problem with student loans? Nationalize them! Have a problem with healthcare? Nationalize it! Have a problem with education? Nationalize it under something called Common Core! Have a problem with the internet? Nationalize it under something called Net Neutrality! And this list could go on for pages.
The problem with all that nationalization is that a) everything becomes politicized, and b) everything ends-up at the Supreme Court. The courts become the sine qua non for the agenda's success. But the real problem in the long run is that if you take this progressive power grab out to its logical conclusion, it ends in totalitarian government.
So just like the one ring, the Supreme Court is the key that opens the door to infinite power.
Which takes us to the current situation in which Ruth Bader Ginsburg is being replaced by Amy Coney Barrett.
RBG was certainly beloved by her fans. Women of all stripes looked up to her as a role model. No doubt she was a tiny person who left a big mark. She’s been lauded as a champion for social justice, women’s rights, LGBTQ rights, the downtrodden, etc. And many called her courageous. Similarly, ACB looks to be another beloved, courageous, female role model who promises to leave a big mark. Yet among the people who worshipped RBG, she is considered a pariah. That’s because unlike RBG, ACB is expected to be a champion for only one thing - the U.S. Constitution.
We call these two judicial approaches liberal/progressive vs. conservative, or activist vs. originalist. But what they really represent are two perspectives of the Constitution. One side sees the Constitution as an obstacle to progress, and the other sees it as the limiting principle that makes us exceptional. Justices are granted the magical power to either abide by the Constitution or ignore it. There’s no penalty for ignoring it, and no reward for abiding by it. Sorry RBG fans, it takes no courage for a Justice to ignore the Constitution. The only courage involved is in resisting the siren song of totalitarian power.
Did you ever wonder why so-called Conservative judges often start out that way and then transform into activist or progressive ones? Recent cases include the current Chief Justice, John Roberts, who has single-handedly re-written major laws to advance his agenda. And have you ever noticed that it never goes the other way? Activist judges never eschew their power and turn originalist. There are many ways temptation and power can corrupt an individual. But self restraint can only result from strong character and courage, and that's either present or it's not.
So why does a Justice like RBG sail through confirmation with bipartisan support including almost every Republican, while the equally qualified Brett Kavanaugh doesn’t get any Democrat support? Why does it always go that way and not the other? Democrats need the courts in a way Republicans do not. They have pinned their hopes on subverting the limits laid out in the Constitution, and that can only be done with activist judges. Republicans are either oblivious or ambivalent to this strategy.
So why did RBG stay on the court knowing she had cancer? Why not retire while Obama was President and have him name a successor? Recall that Tolkien’s character Smeagol starts out as a mild mannered Hobbit, but is corrupted by the ring’s power into the twisted, slimy, deranged creature called Gollum. That metamorphosis is the same one that affects Democrats who embrace the corrupting power of activist courts. One can picture RBG in her later years mumbling to herself:
With John Roberts and even Neil Gorsuch and Brett Kavanaugh as unknown quantities, it’s safe to say that ACB will not be a “fires of Mount Doom” event for the activist Supreme Court. The Constitution will never be safe. It will always take tremendous self restraint, strong character, and courage to hold this Republic together. The enemies of constitutionally limited government will never rest.
For now, the best we can hope for is that ACB is confirmed, has the courage of Frodo, and never transforms into Gollum.