BY CHRISTOPHER MANION
The current uproar engulfing Washington, also known as “mourning the death of Justice Ruth Bader Ginsberg,” proves once more that abortion is the issue, period. After all, if you can kill the most innocent, you can kill anybody.
Those on the Left who are celebrating Mrs. Ginsberg’s “legacy” merely confirm the point: her “legacy” consisted solely of rubber-stamping Roe in the spirit of Margaret Sanger. “Frankly,” she told the New York Times in 2009, “I had thought that at the time that Roe was decided, there was a concern about population growth and particularly growth in populations that we don’t want to have too many of.”
Well, we know what Mrs. Ginsberg’s wailing eulogists don’t want too many of: more Trump-appointed Supreme Court Justices.
To be sure, senior Democrats were already waging war on the Constitution long before Mrs. Ginsberg’s death. Hillary Clinton advocated abolishing the Electoral College. Rep. John Dingell, Jr., the longest-serving Member of Congress in history, wanted to abolish the Senate. Senate Democrat leader Chuck Schumer threatens to eliminate the filibuster and other rules governing Senate debate.
But all this hate speech cannot alter the looming threat of a population that pro-aborts “don’t want to have too many of”: five Supreme Court Justices willing to revisit Roe v. Wade.
At press time, we don’t know whom President Trump will nominate. The two “possibles” most often mentioned are both Catholic women. Democrats have already announced that anti-Catholic Sen. Kamala Harris, Joe Biden’s running mate, will lead the attack on the nominee when she testifies before the Senate Committee on the Judiciary. Battle lines have been drawn. Hate will abound.
A Calm Consideration Before The Storm
While we await the name of the nominee and the ensuing chaos, we entertain a fundamental question: When the Constitution was adopted, the Supreme Court wasn’t considered to be all that important. What has changed? Let’s look at the record.
George Washington appointed John Jay at the Court’s first Chief Justice in 1789. Jay resigned in 1795, when he was elected Governor of New York — a position which he considered to be more important. So important, in fact, that, when President John Adams offered to reappoint him as Chief Justice in 1800, he declined for reasons of health. However, in his letter to Adams, Jay explained further:
“I left the Bench perfectly convinced that under a System so defective, it would not obtain the Energy weight and Dignity which are essential to its affording due support to the national Government; nor acquire the public Confidence and Respect, which, as the last Resort of the Justice of the Nation, it should possess.” (Jay to Adams, January 2, 1801).
Thus things stood in 1801. What changed? Today, is New York Gov. Andrew Cuomo more important than Chief Justice John Roberts?
Well, Cuomo might think so. No one else would. But how did a nomination to the Court in 2020 become more important to many Americans than the presidential race itself?
The answer begins with the Court’s fourth Chief Justice, but it does not end there. When Jay declined the appointment in 1800, Adams appointed his Secretary of State, John Marshall of Virginia, as Chief Justice. In 1803, Marshall changed the course of history when he ruled, in Marbury v. Madison, that the Federal Courts had the authority to declare acts of Congress to be unconstitutional.
During his 1986 confirmation hearing before the Senate Judiciary Committee, Judge Antonin Scalia said he wasn’t going to discuss any Court opinions, not even Marbury v. Madison. Everybody laughed. But they weren’t laughing in 1803. According to the Federal Judicial Center’s account, “Thomas Jefferson criticized Marshall for engaging in unnecessary editorialization, believing the case should have begun and ended with the conclusion that the Court did not have jurisdiction. Edward Corwin, one of the leading legal scholars of the first half of the twentieth century, went further, claiming the case bore ‘many of the earmarks of a deliberate partisan coup’.”
Pretty nasty stuff. But who can correct the Supreme Court when it trespasses beyond its enumerated powers?
The Congress, that’s who.
Marshall’s Legacy Triumphs
The Federalist Papers were published in 1788 to persuade New York state voters to approve the Constitution written in Philadelphia the year before (n.b.: the average New York voter reading these sophisticated treatises had a sixth-grade education).
In Federalist 78, Alexander Hamilton writes that the Federal Courts described in Article III of the Constitution are “the least dangerous branch” of the proposed government. “It may truly be said to have neither FORCE nor WILL, but merely judgment,” he assures us.
Just in case, Article III, Section II empowers Congress to restrict or even forbid the jurisdiction of the Federal Courts “with such Exceptions, and under such Regulations as the Congress shall make.”
Thomas Jefferson warned in 1798 that “In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” When Marbury v. Madison was decided, the Congress could have followed Jefferson’s lead and passed legislation forbidding (in layman’s terms), “No More Marbury’s!” Had Congress perceived the “partisan coup” identified by Corwin, it could have exercised its Constitutional powers and impeached Chief Justice Marshall to drive their point home.
They didn’t. A century later, New York Gov. Charles Evans Hughes could write that, “We are under a Constitution, but the Constitution is what the judges say it is” — an audacious remark at the time. As Chief Justice a quarter-century later, Hughes presided over the Supreme Court as Ku Klux Klan alumnus Hugo Black and his radical colleague William O. Douglas dissolved Jefferson’s chains altogether, to the applause of President Franklin D. Roosevelt.
The “Court Packing Plan” of Senate Democrat Leader Chuck Schumer relies on the precedent set by Roosevelt after his 1936 reelection victory. FDR acknowledged Gov. Hughes’s 1907 affirmation of the powers of the Court — after all, Hughes was now Chief Justice, and the Hughes court had declared several of FDR’s New Deal programs to be unconstitutional.
Instead of asking a friendly Congress to limit the Court’s jurisdiction, or demanding Hughes’s impeachment, Roosevelt threatened to expand the number of Justices on the Court from nine to fifteen. The Hughes Court “got the message,” according to the Social Security Administration’s history page, and responded by upholding as constitutional the National Labor Relations Act and the Social Security Act.
By 1958, the radical Warren Court went so far as to solemnly declare for itself the power that Hughes had asserted half a century earlier. In Cooper v. Aaron, the Court blithely stowed the rights of states protected by the Tenth Amendment safely in cold storage.
Flexing its muscle-on-steroids, the Court then banned prayer in public schools (Engel v. Vitale, 1962), banned Bible reading in those schools (Abington School District v. Schempp, 1963), and overturned state laws nationwide that prohibited abortion (Roe v. Wade, 1973).
The die was cast. Today, who gets to use what bathroom is up to the Supreme Court.
“Impeach Earl Warren!” read the billboards on American roadsides for years. But impeachment wasn’t necessary. In all of the above cases, the Congress could have quickly responded simply by removing these areas of the law from the jurisdiction of the Federal Courts under Article III, Section 2.
But Congress didn’t. Nor did it impeach Earl Warren. It was much easier for a spineless pol to shrug and whine to an outraged public that “the Court has spoken.”
That’s where things stand today, and that’s why pro-abortion forces on Capitol Hill and around the country are apoplectic.
May Ruth Bader Ginsberg’s “legacy” rest in peace.
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