On Monday’s edition of New Day there were several segments discussing President’s Trump’s plans to announce his pick for the Supreme Court. In one such segment, CNN Chief Legal Analyst, Jeffrey Toobin warned viewers of the incoming ‘conservative agenda’ once Trump’s nominee is confirmed:
And you just have to remember how extensive the conservative agenda is here for the supreme court. It is not just rolling back abortion. It’s not just rolling back gay rights. It's not just eliminating affirmative action. It's not just expanding the death penalty. Its limiting the power of the government to regulate at all. It’s basically taking what the conservatives did to Obamacare and do it to every law that congress passes, whether it is environmental laws or labor protection laws. Basically using the courts to squeeze the rights of individuals and the rights of the government to regulation corporations, to limit that more and more. All of that is on the table here.
This sort of rhetoric has been Toobin’s shtick on television and in print since Justice Anthony Kennedy announced his retirement. Last week he wrote a viral piece in the New Yorker that echoed many of these views.
What is is so strange and backwards about Toobin’s claims is that he seems very focused on the idea that these conservative judges would act as judicial activists pushing a conservative agenda instead of impartial judges. The problem is these judges, like Justice Gorsuch, are generally advocating for originalism. This means that judges should not act as activists trying to read their point of view into the Constitution, but should instead apply the Constitution on the grounds of what the text says and what the framers intended when they wrote it. That is the antithesis of judicial activism.
On the other hand, the decisions Toobin is so concerned about are examples of judicial activism. In the case of Roe v. Wade, there is no right in the constitution to an abortion. This doesn’t make it illegal but rather leaves it to the states under the Tenth Amendment. Rather than leaving the issue to the states, the court read into the Constitution a right that isn’t there.
This is because the American left views the court not as a body to interpret laws and assess constitutionality but as super-legislature that can re-write laws and create rights. Now that the left has turned the court into a super-legislature, liberals like Toobin fear that the weapon they created will be used against them.
A transcript of the relevant segment is below.
New Day with Alisyn Camerota and John Berman
7/9/18
7:22:55 – 7:24:09
JEFFREY TOOBIN: And you just have to remember how extensive the conservative agenda is here for the supreme court. It is not just rolling back abortion. It’s not just rolling back gay rights. It's not just eliminating affirmative action. It's not just expanding the death penalty. Its limiting the power of the government to regulate at all. It’s basically taking what the conservatives did to Obamacare and do it to every law that congress passes, whether it is environmental laws or labor protection laws. Basically using the courts to squeeze the rights of individuals and the rights of the government to regulation corporations, to limit that more and more. All of that is on the table here. And the reason, just to refresh everyone’s memory, the reason that this seat is so much more important than the Gorsuch for Scalia seat, is that Justice Scalia was already very conservative. So it didn’t change the makeup of the court very well. Anthony Kennedy was likely – was a usual Republican vote, but on a number of important issues, gay rights, abortion rights, he was with the liberals. So the replacement of Kennedy in a five to four court is immensely immensely significant.
