WASHINGTON, April 9, 2017 — The confirmation of Judge Neil Gorsuch to the U.S. Supreme Court on Friday is the first major victory for President Donald Trump in the U.S. Congress. At 49, Gorsuch is one of the youngest justices confirmed to the Court, and his impact on jurisprudence could extend for 40 years.
Gorsuch is by all accounts an intelligent and highly qualified replacement for deceased Justice Antonin Scalia, whose pugnacious conservatism set liberal teeth on edge during his tenure on the Court. Gorsuch seems to be cast very much in Scalia’s judicial mold. He returns a weak conservative majority to a body that has been evenly divided between its liberal and conservative wings, though Justice Anthony Kennedy remains a swing vote who can easily deliver the win to liberal positions.
So his confirmation is hailed not just as a victory for Trump, but for conservatives, and their mood has been celebratory. It should not be.
A common failure of both liberals and conservatives is to see the world in terms of results. A majority opinion that upholds abortion rights is viewed as a win for liberalism; an opinion that permits the unfettered flow of corporate money into political campaigns is a win for conservatism.
More broadly, laws that achieve liberal ends are viewed as wins for liberalism, while laws that achieve conservative ends are viewed as wins for conservatism. This is an approach to policy that sees things in terms of wins and losses, the score determined by numbers of laws and judicial opinions, and the scope and depth of their impact.
From that perspective, the Affordable Care Act (Obamacare) was a victory for liberalism, and so was Roe v. Wade. But were they really?
The country was shifting to ever-broader acceptance of at least some abortion in the 1960s and 70s. Outright bans on abortion were falling. Had the Court never stepped into the arena, there’s little reason to doubt that most of the country would have legal abortion, with islands of anti-abortion law spread like an archipelago across the country.
In order to achieve national abortion rights all at once, the court dumped a poorly reasoned opinion (even abortion proponents find it so) on the country, and in the process stiffened and energized opposition to abortion. As that opposition rallied against Roe v. Wade, it managed to chip away at the availability of abortion, which as a practical purpose might as well be illegal in much of the country, so tightly is it restricted and so ugly a political mire as it has become.
Had the Court legalized abortion with a better-reasoned opinion, the issue would be much less problematic now than it is. Getting the result abortion proponents wanted by bad logic has left abortion rights in constant peril from both national and state legislators and left abortion as a political fund-raising hot-button for 40 years.
Those in favor of universal health insurance coverage backed Obamacare as their best chance of getting something while the getting was good. In their eagerness to get it, they were willing to ram it through with absolutely no Republican support and with all manner of compromises with House and Senate Democrats.
In the end, they got their bill, but it came with a high cost. Energized by what they considered the high-handed tactics of Democrats, who after 2008 dominated both houses of Congress and didn’t need to compromise with Republicans, Republicans organized to defeat Obamacare supporters in conservative states and districts.
Obamacare still stands, though, without some strong intervention, it will stand on increasingly wobbly legs. But Republicans took the House in 2010, and they now hold the Senate. More importantly, they began to erode Democratic positions in state legislatures, largely fueled by their fury over Obamacare and their mistreatment at the hands of Democrats. Republicans now control 32 state legislatures and 33 governors’ mansions; Democrats control 12 legislatures, and six are split.
In the cases of both abortion and health care, victory was seen in terms of result; the process and logic by which the results were achieved were seen as distantly secondary or ignored, but the process contained the seeds of political defeat and the subversion of the desired results.
In a similar manner, President Obama’s use of executive orders to achieve his policy goals and Senate Democrats’ use of the so-called “nuclear option” to get Obama’s lower court judges approved were tactical measures designed to achieve policy goals. As long as they delivered the desired results, they produced “wins.”
These weren’t wins. The Democrats never seem to have imagined that they’d lose both the Senate and the White House. They pushed changes to the procedural status quo to give themselves wins, but those changes—changes in process—remained lying around for Republicans to use and expand on. Changes made quickly by executive order could be undone just as quickly by executive order. The nuclear option was a precedent that could easily be expanded.
By a similar token, expansions of presidential authority to wage war and intrude into Americans’ private lives in the name of national security over the last 16 years waited to be expanded. Trump has done just that by allowing the Department of Defense more latitude to engage in military actions without direct White House supervision. A power created tends to grow, and tools that make the exercise of power easier will be used.
When the Senate leadership expanded the nuclear option to end the Democrats’ filibuster—a purely partisan and idiotic filibuster of a qualified judge, but an idiocy allowed under the rules—they simply took precedent and ran a little farther with it. Democrats created a weapon and left it lying around, mindless of who might come along and use it later.
That Republicans picked up that weapon and used it to get a conservative justice on the Court is no victory for conservatism. That weapon can’t be unmade, and Democrats can’t be drained of their desire to use it when they get the chance. It’s a weapon that expands the power of partisan majorities. It is a profoundly un-conservative device.
Trump administration advisor Steve Bannon spoke at the Conservative Political Action Conference in February against the “administrative state.” That speech was widely reviled by liberals, and for good reason; it was the most profoundly conservative proposal made at CPAC.
The Trump administration has made some moves in the direction of dismantling elements of the administrative state. That is, it has moved to unravel some centers of power that combine elements of executive, legislative and judicial power all in one unholy, unconstitutional rat’s nest. These centers of power create regulations, then prosecute and punish violators with almost no say by the public.
Conservatives should celebrate the reduction of centralized power, even if it means losing on some policy issues. It isn’t policy that defines whether we are conservative or liberal, but the ways in which we get partisan ideas turned into policy. To dismantle the administrative state would be a vast, strategic, conservative victory. The confirmation of Gorsuch was only a tactical victory, and it can backfire.
We may need conservatives on the Court to preserve some policy victories, but it’s the procedure that will always get us in the end. Republicans are celebrating a win for conservative policy achieved by liberal means. That’s a victory that will someday cost them dear.
They won’t, after all, always control the Senate and the White House.