Quote of the Day

“The people aren’t stupid. The 63 million Americans who voted for Mr. Trump—some as an unappealing but better alternative to Mrs. Clinton, but many with gusto—recognize that what is going on here is a concerted effort to overturn the results of a legitimate presidential election. Is it really unreasonable to ask whether this might be as much of a threat to American democracy as anything Mr. Trump has said or done?”

William McGurn

And Robert Mueller is the leader of this coup d’état.

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The Full Furies Have Been Released

From William McGurn:

In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court’s claim has taken some by surprise. It shouldn’t have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.

That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.

“At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court’s “better informed understanding.”

Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.

Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.

Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?

We learned that it matters a great deal.

It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.

It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.

It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.

It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.

Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president’s solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.

The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.

The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.

In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.

As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father’s culture war.

A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.

Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy’s right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.

Welcome to Justice Kennedy’s world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.

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Pleasing the Left

To Chief Justice John Roberts, integrity and legitimacy now means pleasing the Left, i.e., upholding any law that expands the power and scope of government.

From William McGurn:

Not once in the 59 pages that constitute Supreme Court Chief Justice John Roberts’s lead opinion in National Federation of Independent Business v. Sebelius does he use the word “integrity.” Even so, in the days since the individual mandate was upheld as a tax, concern for the “integrity” or “legitimacy” or “reputation” of the Roberts Court has become the most accepted explanation for why the chief justice ruled as he did.

Thus Reuters, which tells us that Justice Roberts was “trying to preserve the integrity of the judiciary in polarized Washington.” Or the New York Times, where Tom Friedman lauds the chief justice for “a simple noble leadership impulse at a critical juncture in our history—to preserve the legitimacy of the Supreme Court.” The Washington Post’s Charles Krauthammer agrees with this motivation, speculating that had Justice Roberts “been just an associate justice, and not the chief” he might well have voted otherwise.

If Mr. Krauthammer is correct, it raises a disquieting question. During Justice Roberts’s confirmation hearings back in 2005, he described judges as umpires whose job it is to call balls and strikes as he sees them. The idea that he might have voted otherwise if he were not chief justice suggests that a “strike” was changed to a “ball” because of concerns for how the straight call would be perceived.

Let us stipulate that there’s nothing wrong with a justice who starts out with one opinion but changes his mind as he reviews the facts and arguments. Let us agree too that the reputation of the court is a legitimate concern of any justice. The fundamental difficulty remains: a labored lead opinion that looks like a conclusion struggling for a rationale.

[…]

It’s also hard not to notice that people now extolling Justice Roberts for rescuing the court’s integrity are largely the same ones who have been impugning it. That’s especially true of the White House, which had made plain that if the Supreme Court had gone the other way on health care, the Roberts Court would become a major target of Obama’s re-election campaign. The chief justice knows how ugly that might be, having sat through the president’s crass political attack on his court during the 2010 State of the Union address.

As more than one conservative has pointed out, the integrity of liberal justices who reliably line up for whatever outcome is desired by the Democratic Party goes unquestioned. Indeed, the definition of integrity assumes one direction. For example, the one notable occasion when the Supreme Court specifically invoked integrity was back in 1992 (Planned Parenthood v. Casey), when the court used it to justify reaffirming Roe v. Wade’s conclusion—a constitutional right to abortion—while rejecting the reasoning that led to it.

Granted, in that case the court was deferring to a previous judicial power grab and not to the people acting through their elected representatives. Still, Associate Justice Antonin Scalia’s clarifying rebuke is well worth reprising here: “Instead of engaging in the hopeless task of predicting public perception—a job not for lawyers but for political campaign managers—the Justices should do what is legally right.”

Justice Scalia’s dissent in Casey illuminates a political handicap imposed on conservatives by their own principles. Whereas the liberal belief in a living Constitution allows them to stretch its limits to justify almost any desired outcome, conservatives believe the Constitution imposes real limits. The chief justice’s tax argument rankles because no one else in America is buying it: certainly not the conservative dissenters, who firmly reject it, nor the court liberals, who appear to have winked because it gave them the outcome they wanted.

The day after the ruling came down, this newspaper carried an article that explained Justice Roberts’s decision this way: “By confounding charges that the court is too partisan, the chief justice might have earned sufficient political capital to move to the right during the next term, when the court will likely confront a host of hot-button issues, including affirmative action, gay marriage and the continued vitality of the Voting Rights Act.”

If earning “sufficient political capital” is simply a consequence of his ruling, Justice Roberts cannot be blamed. If it was the aim, however, and it led to his voting as chief justice in a way he would not have voted as an associate justice, he has raised rather than resolved questions about the integrity of the Roberts court.

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Perspective

From William McGurn:

Not since Herbert Hoover has a party out of power had such an opportunity to run against everything that troubles the American family—prices, interest rates, unemployment, taxes, or the fear for the future of their old age or the future of their children—than is now presented to the Republican Party.

The Republicans, however, haven’t figured this out. This is their basic problem. They have no strategy for defeating an Obama administration that is highly vulnerable on both domestic and foreign policy.

That’s the conventional wisdom in a nutshell, isn’t it?

It will come as no surprise that these words appeared in a Feb. 29 column in the New York Times. They are reproduced here exactly as written, save for one small adjustment.

The president whose failings they describe is Jimmy Carter, not Barack Obama. The lines were written in 1980, not 2012. The author was the then-dean of conventional wisdom, James “Scotty” Reston. The headline was “Jimmy Carter’s Luck,” a reference to Reagan’s victory in the New Hampshire primary three days earlier.

[…]

Then as now, the chattering classes wondered aloud whether a candidate who could win the Republican nomination could prevail against President Carter in November. On March 1, former President Gerald Ford amplified that view when he told a New York Times reporter, “Every place I go and everything I hear, there is the growing, growing sentiment that Governor Reagan cannot win the election.”

Then as now, some put their hopes on a late entry, in the same way that some now pine for Jeb Bush or Mitch Daniels or Chris Christie to enter the race. In the same interview where Mr. Ford predicted that Reagan’s nomination would mean a repeat of 1964, he also declared himself open to a draft if there were a genuine “urging” by the party.

In retrospect, we forget how seriously the Ford possibility was taken, or how popular it was in the polls, or how lingering its effects would be (at the convention, there would be speculation about a “co-presidency”). A Harris Poll released just about this time in 1980 bolstered the case for Mr. Ford by reporting that, in a head-to-head matchup, Ford (the noncandidate) would trounce President Carter 55% to 44%. The same poll showed Reagan (the front-runner) trailing Carter 58% to 40%.

Nor was candidate Reagan without baggage. As governor, Reagan had pushed through the largest tax hike in California’s history, had signed one of the nation’s most liberal abortion laws, and—as George H.W. Bush pointed out—presided over the doubling of the state budget over his eight-year tenure, to $10.2 billion when he left office from $4.6 billion when he entered.

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