Penumbras

Daniel Henninger argues that the pivotal reason for the Democrats' hysteria over the Donald Trump's Supreme Court nomination can be traced to the court’s 1965 decision, Griswold v. Connecticut, a decision that interpreted the constitution rather broadly. He explains:

Justice William O. Douglas famously explained how this [broad interpretation] could be, arguing that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Douglas’s “penumbras” decision, though ridiculed, defined the post-’60s era of “judge-made law,” in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it. This results-driven view is what routinely sent Justice Antonin Scalia into eloquent and volcanic dissents.

Though capable of rigor in his reasoning, Anthony Kennedy was willing to swing toward decisions that simply affirmed what he thought were ascendant cultural mores. With the Trump Supreme Court nominations, this long era of judge-made law is at risk, if not over.

First with Neil Gorsuch and now with Justice Kennedy’s successor, Donald Trump is putting a stop to ruling by penumbra. It’s a historic shift, and Mr. Trump’s opponents are going absolutely crazy.

As the Times editorial suggests, the left seems to believe the Supreme Court will virtually cease to exist as a branch of government. That puts liberals in a tough spot, because they had already thrown in the towel on the legislative branch.

From the 1970s onward, modern liberalism increasingly came to rely on filing lawsuits to effect policies that couldn’t survive passage through representative bodies like the House and Senate. Or they deployed executive mandates—which reached an apotheosis with Barack Obama.

Former Senate Majority Leader Harry Reid ended the filibuster for appellate-court nominees so his party could pack the D.C. Circuit with judges who would affirm the Obama regulatory orders that covered vast swaths of American life.

Having all but abandoned the legislative branch to achieve their goals, progressives now think the Trump Supreme Court nominations will close off the judiciary as a policy tool. Thus, the hysteria.

And hysteria it is. The chicken little strategy is already in full effect and will explode into a new level of vicious opposition once the SCOTUS nominee is appointed next week.

Personally, I prefer a moderate—not aggressively conservative—SCOTUS. I like justices whose votes are unpredictable (hence, I liked Kennedy). Unlike the hard core conservatives and equally hard-core liberal justices whose votes are predictably ideological.

What we all should be looking for is a jurist who interprets the constitution, not a jurist who makes new laws. On the other hand, Justice Douglas was right—any rational interpretation of the constitution should recognize the potential for penumbras, but those penumbras should extend the edges of the constitution only slightly, adjusting it for the realities of modern life, but not using it to eclipse the job of the legislative branch of government.