America’s raging radicals want to tear up the constitution

Amid the storm of conflicting acclaim and protest attending the confirmation of Justice Brett Kavanaugh to the Supreme Court of the United States, one highly significant fact was baldly reported across the media, as a casual statistic, without further elaboration: the fact that Kavanaugh’s appointment gave the Court a conservative majority for the first time since 1934.

Leaving aside the even more significant phenomenon acknowledged within that detail – that the highest court of justice in the most powerful country in the world is divided along partisan lines, like a parliament – it is startling to realize that conservatives have consistently had minority representation within America’s ultimate judicial forum for the past 84 years. The presidency has see-sawed throughout that period, if not between radical and conservative incumbents, at least between Democrats and Republicans, but the SCOTUS has been the preserve of liberals.

It is no coincidence that this period of progressive domination began in the 1930s. President Franklin D Roosevelt became frustrated by the Supreme Court’s striking down several of his New Deal measures as unconstitutional. His riposte was the Judicial Procedures Reform Bill of 1937, popularly known as the “court-packing plan”. It was an audacious proposal to enlarge the number of justices on the Supreme Court by adding a new justice every time an incumbent reached the age of 70 without retiring.

The Framers of the Constitution had not defined the number of justices on the Supreme Court, so the proposal could not be rejected as unconstitutional, though it was obviously opportunist. The measure provoked opposition even from Roosevelt’s fellow Democrats, including his vice-president. The bi-partisan opposition was successful. The Democratic chairman of the Senate Judiciary Committee delayed the bill in the committee for 165 days and the death of its main proponent, the Senate majority leader, doomed it to defeat.

Roosevelt’s attempt to pack the Supreme Court was opposed by the public, including many of those who supported his New Deal. Eventually Roosevelt got his way simply by being elected for four successive terms, giving him ample opportunity to fill the Supreme Court with his nominees. Just as the lasting effect of FDR’s New Deal was to blunt the cutting edge of America’s free-enterprise culture, juridically his enduring legacy was a Supreme Court whose function was diverted from the neutral interpretation of the law mandated by the Framers of the Constitution to acting as an extra-Congressional motor of change.

That entrenched liberalism was most evident in the era of Chief Justice Earl Warren. One of the Court’s decisions affirming the doctrine of “substantive due process” paved the way for its notorious post-Warren decision in Roe v. Wade. Despite the liberal preponderance, much of the Court’s work remained uncontroversial, but the rise of ideological confrontation in American public life has resulted in recent years in around one decision in five passing by a majority of only 5-4.

The Framers of the Constitution were deeply concerned about the possibility of politicization of the Supreme Court. Their concern, however, was focused on the danger of Congress exerting pressure on the Court. James Madison’s draft of the Constitution even included provision for a protective Council of Revision, though that did not feature in the final version. Presidential interference with the SCOTUS was initiated in recent history by Roosevelt. It was he who first invited a Supreme Court justice, Frank Murphy, to take the oath of office at the White House in 1940, a subtle assertion of suzerainty.

A landmark moment in the ideological struggle for control of the Supreme Court came in 1987 when the Democrats blocked the confirmation of the impeccably qualified but conservative Robert Bork. So enduring has been the Democratic stranglehold on the SCOTUS that Democrats have come to regard it as an entitlement. They have been encouraged in that delusion by the bulk of the media, who over the past three months have referred to the prospect of a conservative majority on the Court as if it were some kind of extinction event for America.

On the few occasions when the Court has not behaved favourably towards Democratic aspirations, the response has been petulant. Barack Obama denounced the Supreme Court for having “reversed a century of law” with its Citizens United decision. Democrats generally, when the Court has displeased them, have accused it of adopting the very practices they want it to adopt, but in their own interest.

“The Court has been acting not as a judicial body, but as a policy-making body…” That was Roosevelt’s complaint when parts of his far-reaching New Deal programme were rejected as unconstitutional. Having gained effective control of the Court for the past 84 years the Democrats regard its function as being precisely the one Roosevelt deplored before he packed it: a policy-making body. They see it as a motor of progressive social engineering that can be relied on to continue functioning even when there is a Republican incumbent in the Oval Office.

That is the reverse of what the framers of the Constitution intended: impartial interpretation of existing law in strict accordance with the Constitution. Judicial activism, the transformation of society without reference to parliament or electorate, is now a contagion that has spread throughout the developed world, not least in Britain. For America, however, there is an additional malignancy to this abuse: America’s entire civilization is ultimately predicated upon a single document, its written Constitution. To debauch that Constitution is to subvert American society at its core.

The scenes of anarchy attending the confirmation process of Justice Kavanaugh were an alarming illustration of how fragile consensual governance has become in the United States. The adherence to the so-called Resistance of Harvard Law School students – the lawyers and judges of the future – betrays how deeply embedded and influential the Frankfurt School termites have become throughout the education system; the same applies in Britain.

It takes only a decade to brainwash a generation. We are currently living with the backwash from the revolutionary hysteria of 1968. Unless radically challenged and disempowered, the forces of Revolution – for that is what they are – will occupy all the commanding heights in society and enforce their dogma on America and other nations that have so far spectated like somnambulists at this seizure of power.

The Democratic Party has been Corbynized. It has now shamelessly abandoned the norms of political discourse and made common cause with mob rule: rich elitists posing as revolutionaries, like Philippe Égalité who fanned the early flames of the French Revolution. They should have a care: revolutions, ultimately, are unkind to Girondins.

Across the globe, when people look towards the developed world for symbols of social stability, one of the totemic institutions they identify as a template of justice is the American legal system. At its apex stands the Supreme Court. Americans must unreservedly sustain and defend that institution. That requires responsible government – a criterion that, at least for the time being, excludes the Democratic Party. It is to be hoped American voters bear that in mind at the Mid-Term elections.