by Mitch Kokai
Senior Political Analyst, John Locke Foundation
From the New Deal to well past the Reagan era, progressives serenely regarded the United States Supreme Court, and thus the third branch of government overall, as being securely in their hands. The pieties they mouthed during this period — about the sacredness of Marbury v. Madison and the importance of judicial independence to a vital republic — had the distinct virtue of being true.
But this language was equally a means to a rhetorical end during an era when the rulings of the Court’s liberal majority securely tended towards the expansion and centralization of federal government power or the passage of nationwide social legislation via judicial fiat, as in Roe v. Wade. The Court’s legitimacy was not to be questioned because the Court was accomplishing progressive goals in sweeping fashion and often with minimal theoretical attachment to inconvenient constitutional text or history.
Once progressives began, during Ronald Reagan’s second term, to realize they might one day lose this all-important preeminence, their attitude toward the Court began to shift. Their initial tactic was pitiless defense: The politicization of Supreme Court confirmation battles is an ongoing chapter in our national politics that began with the infamous 1987 Robert Bork confirmation hearings, in which Ted Kennedy demagogued one of America’s most conscientious legal scholars into a cartoonish demon for no other reason than that Roe v. Wade was thought to be on the line. …
… [N]ow that Dobbs has shown not only that the Supreme Court has been definitively lost to progressives for the immediate future but also that the justices cannot be intimidated out of their constitutional principles, progressives have shifted to offense. It is a deeply ominous development for the country. The apocalyptic tone of left-wing commentary since the Court overturned Roe has now evolved into a smear campaign against the integrity of the originalist wing of the Court, a rash of stories all curiously appearing in serial rollout suggesting financial compromise or corruption on the part of Justices Gorsuch, Roberts, and Thomas.