July 11, 2022 at 12:13 p.m.
The return of the rule of law and democratic process
The return of the rule of law and democratic process
That is to say, if a court decides a matter and you agree with it, then the court has done its job. If you don't agree with it, then the decision is illegitimate and all sorts of things should happen: the court must be dissolved; the court must be packed; the justices must be impeached.
In the modern mindset, and again particularly in the progressive world view, it is impossible for a court to disagree with you and have followed the rule of law. The rule of law is followed when the rule aligns with your political predisposition.
Or, to say it yet another way, the ends justify the means.
But, of course, what is important is the means: the process by which decisions are reached, the process that preserves democratic governance and civil liberties - and delicately balances the tensions between the two - and along the way achieves something resembling justice.
These past few weeks a flurry of court decisions have re-established, for the moment, the rule of law and democratic process. The court decisions, two in particular in the U.S. Supreme Court and one in the state Supreme Court, are a hopeful sign that the most important thing in our polity - the democratic process - is once again getting the respect it deserves.
When that process is followed, decisions are reached and opinions delivered that may not satisfy many and, in some cases, most of us, but that is far less important than whether the process by which the decisions were reached satisfy a democratic republic's requirements, namely, that decision-making remains in the hands of the people's elected representatives, save for constitutional safeguards against the deprivation of individual civil liberties and against the establishment of a tyranny of the majority.
The first decision was by the U.S. Supreme Court, in Dobbs, to overturn Roe v. Wade. Whether one agrees with the court's conclusion, it is hard to argue with its reasoning, as best articulated by justice Brett Kavanaugh in a concurring opinion - that abortion is an issue best resolved in the people's house, through elections and local control.
In the Dobbs decision, the justices pointed out that the original Roe decision, made by an all-male panel, came at a time, in 1973, when there was great moral division about abortion. Abortion was still completely illegal in 30 states. The decision compelled the resignation of the people's right to rule themselves on the matter, overturned scores of laws both banning and regulating abortion, and established a new right neither mentioned in the constitution nor historically embraced in the nation's cultural or statutory canon.
In Dobbs, the court corrected its mistake. In the end, for better or for worse, the decision boiled down to a single conclusion by the court, namely, that nine unelected judges on the federal court have no right to make abortion policy one way or the other - no right to impose a ban on abortion and no right to compel states to allow abortion.
Kavanaugh distilled the essence of the decision as he saw it to one word - neutrality, saying that the nine unelected members of the court did not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.
Instead of adhering to the constitution's neutrality, Kavanaugh wrote, the court in Roe took sides on the issue and unilaterally decreed that abortion was legal throughout the United States up to the point of viability.
In that court's mind, the ends justified the means.
More important, Kavanaugh underscored a key point about the neutrality question, that just as the constitution contained no right to abortion, there was no constitutional ban on all abortion. It was, Kavanaugh wrote, all about the process.
"On the contrary, the court's decision properly leaves the question of abortion for the people and their elected representatives in the democratic process," he wrote. "Through that democratic process, the people and their representatives may decide to allow or limit abortion. As justice Scalia stated, the 'States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.'"
The second decision of major import when it comes to democratic process is West Virginia v. EPA, in which the court ruled that the EPA - and all other executive federal agencies - must have clear authorization from Congress to enact sweeping rules that effectively command and control entire sectors of the economy, in this case the nation's electricity grid.
In the case, the EPA interpreted a provision of the Clean Air Act, which requires existing coal-fired plants to implement the best system of emissions control available, to mean - rather than upgrading facilities with the best technology feasible to reduce emissions - that the best system was, effectively, to simply shut them all down, hence decreeing through executive fiat what the energy sector would look like.
In this decision, another concurring opinion said it best, that of justice Neil Gorsuch, when he declared that a democratic instrument of the people, such as a republic, would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable 'ministers.'
"From time to time, some have questioned that assessment," Gorsuch wrote. "But by vesting the lawmaking power in the people's elected representatives, the Constitution sought to ensure 'not only that all power [w]ould be derived from the people,' but also 'that those [e]ntrusted with it should be kept in dependence on the people.'"
Gorsuch articulated in plain terms the brilliance of the democratic process enshrined in our nation's constitution.
"By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove stable over time," he wrote. "The need for compromise inherent in this design also sought to protect minorities by ensuring that their votes would often decide the fate of proposed legislation - allowing them to wield real power alongside the majority."
Permitting Congress to divest its legislative power to the executive branch would dash the whole scheme, Gorsuch wrote.
"Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him," he wrote. "In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse. Stability would be lost, with vast numbers of laws changing with every new presidential administration."
As with the Dobbs decision and abortion, Gorsuch observed that the EPA decision did not mean the high court was making energy policy, merely reiterating that legislative power resides with the people and their elected representatives.
"In reaching its judgment, the court hardly professes to 'appoin[t] itself' 'the decision-maker on climate policy,'" he wrote. "The court acknowledges only that, under our Constitution, the people's elected representatives in Congress are the decision-makers here - and they have not clearly granted the agency the authority it claims for itself."
Finally, in Wisconsin, the state Supreme Court ruled late last month that Fred Prehn could keep his seat on the DNR's Natural Resources Board, despite the fact that his term ended more than a year ago.
On its face, this seems like a hard decision to defend. Prehn's term ended and Gov. Tony Evers appointed a replacement. The thing is, according to the plain language of the statute, that replacement cannot take the seat until confirmed by the state Senate, which refuses to do so. As such, Prehn becomes a holdover.
Is the Republican-majority state Senate playing a political game? Sure they are, because they know that Prehn's replacement would shift the balance of power on the board.
And so liberals decry the collapse of democracy, when in fact it is just the opposite. Republicans may be playing a game, but they are following exactly what the law says can be done, and even a liberal Dane County circuit court judge threw out the court challenge seeking to boot Prehn from the board.
In the modern and especially the progressive world view, though, the remedy is to simply have a judge - or, as the case may be, an administrative agency - rewrite the statute. But that is the most anti-democratic result.
In a nation in which democratic process and not partisan ideological outcomes are preeminent, the correct response is to change the law if people don't like it, or to elect new representatives.
As the dust settles, the media fury swirls about us, and the comrades gather to declare democracy dead. Democracy, as in "our way or the highway."
To be sure, democracy, as defined by process and not outcome as the better route to justice, as defined as devotion to the means rather than the ends, may not be in the best of health, battered as it has been by the progressive left, but, with these court decisions, the prognosis is a lot better than it has been in a long time.
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