Ever since 1980, politicos speak of the three-legged stool of the Reagan Coalition: social conservatives, economic conservatives and national security conservatives. This coalition has been the key to Republican victories for more than a quarter-century. When the coalition is mobilized by an effective campaign, the GOP prevails. When it is dispirited or disorganized, the GOP fails.The issue of judges, most especially the Supreme Court, has been the foremost issue for social conservatives for a generation. It has been the highest priority for the pro-life movement ever since Roe v. Wade in 1973. Lawsuits since 2003 involving gay marriage have made it the focal point on that issue as well. The courts have also been ground-zero since the 1960s on controversies involving faith and religion. And after the 2008 case District of Columbia v. Heller, the courts might become the central arena over Second Amendment rights as well.
But recent Supreme Court developments should now make the courts a top issue for economic conservatives and national security conservatives as well, and could change the political equation.
In 2007, the Supreme Court handed down Massachusetts v. EPA, where some states were suing the federal government to force the Environmental Protection Agency to regulate all sources of carbon dioxide. The theory was greenhouse gases such as CO2 cause global warming and should be designated a pollutant under the Clean Air Act.
The Court stunned legal observers, turning all sorts of longstanding legal doctrines on their heads, and decided the suit was proper. It then ordered the EPA to decide whether CO2 and other greenhouse gases affect the environmental and, if so, to set up a regulatory scheme that will control every source of these gases in America—including every car. The EPA is still working to implement the Court’s order.
This decision, criticized by conservative legal scholars as an activist ruling, could cost the American economy hundreds of billions—and possibly over a trillion—dollars. The EPA case will impact countless businesses across the country, with devastating consequences.
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.