Over at The Atlantic Erwin Chemerinsky has written a much-discussed piece imagining a truly liberal Supreme Court. While it’s mostly what you expect — increased reverence for abortion, less protection for political speech, and affirmative action today, tomorrow, and forever — two paragraphs stood out. Regarding the Second Amendment, he says this:
Until 2008, not once did the Supreme Court find a law to violate the Second Amendment. Then, in District of Columbia v. Heller, the Court, by a 5-4 margin, declared unconstitutional a 35-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote the opinion for the Court. A Supreme Court bench with five Democratic appointees will not extend this protection for gun rights and likely would overrule it, returning to the view that the Second Amendment protects only a right to have guns for the purpose of militia service.
Returning? As Justice Scalia painstakingly outlined in the Heller opinion – and as my colleague Charlie Cooke as explained in the pages of NR– the notion that the Second Amendment protects only a “right” to have a gun in the context of state-sanctioned militia service is both ahistorical and illogical. It is chilling how casually even leading leftist scholars essentially write the Second Amendment out of the Constitution.
But Chemerinsky was just warming up. In a paragraph called “dreaming,” he says this:
The possibility of five or six Democratic justices allows one to imagine what might be done in other areas. Might the Court find a constitutional right to education and conclude that disparities in school funding violate the Constitution? Might the Court find that the racial injustices in the criminal-justice system violate equal protection? For so long, progressives have had to focus primarily on keeping the Court from overturning precedents and limiting rights. Justice Scalia’s death and the coming presidential election allows liberals to dream of how much a different Court could do to advance liberty and justice for all.
As frustrating as many Republican appointees have been, at the very least they stopped the Court from exercising the kind of power Chemerinsky outlines here — where it drops even the pretense of restraint and directly injects itself into the business of governing. This is why judicial nominations matter so much. This is why it’s simply insane to nominate a man who has the highest unfavorable ratings in the history of favorability polling.
To many on the Left, the entire apparatus of government should serve the interests of social justice, regardless of its constitutionally-delegated role. When legislatures “fail,” then regulators pick up the slack. When regulators fail, then the Court takes command. Chemerinsky is “dreaming” of a post-constitutional Supreme Court.
Two Chilling Paragraphs About a Liberal Supreme Court