Economic conservatives should wake up to this decision as a sign that a 5-4 majority of the four liberals on the Court, plus the Court’s one moderate, are willing to engage in economic policymaking through judicial fiat that could have a crippling impact on business.
Similarly, the Court has also ventured into uncharted waters on national security.
The Supreme Court has recently begun second-guessing the policy judgments of the president and Congress on how to manage national security matters arising from an ongoing war. This is completely unprecedented in American history.
The most extreme example was the Boumediene v. Bush decision. The Supreme Court held in a 5-4 split decision that the writ of habeas corpus extends to terrorists captured on the battlefield that are not U.S. citizens and held on foreign soil. Habeas corpus gives these terrorist detainees the right to challenge their detention in civilian U.S. courts. Military personnel can be forced to testify under oath and classified evidence can be forced to be revealed. All the other rights designed to protect American citizens can be exploited by our enemies to gain release back onto foreign battlefields.
This stunning decision changes American national security policy forever. Dozens of lawsuits are already underway, brought by many of these terrorists seeking either release or for the government to publicly expose the intelligence gathered against them and their terrorist networks. One national security law expert I consulted informed me this one decision is the single worst national security mistake the Supreme Court has ever made in our country’s history.
Both of these cases illustrate why economic conservatives and national security conservatives must join their social conservative brethren in fighting for judicial nominees that exercise restraint. Judges must faithfully interpret the Constitution and laws as they are written, not as any given judge might want them to be written. Policymaking must be left to the people through their elected representatives, not to unelected, life-tenured judges.
While this is especially important when it comes to the Supreme Court, the lower federal courts cannot be ignored. More than 99% of the time, the federal appeals courts have the final say on the cases before them; few make it to the Supreme Court.
Therefore with Democrats planning to push legislation that would create dozens of new judgeships that Barack Obama could fill right away, all three legs of the Reagan coalition must unite to prevent a vast wave of far-left judicial activists from swamping the courts. And when a vacancy appears on the Supreme Court, the GOP must fight with everything it’s got to oppose the most extreme nominees.
The Reagan coalition must unite to spur the GOP to fight for our nation’s courts.