Michael Davis: Why Trump's transformation of the federal judiciary matters so much in 2020

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Supreme Court ends session with mixed verdict on Trump's financial records

The Supreme Court wraps up a blockbuster term in which Chief Justice John Roberts once again plays a pivotal role; Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, reacts.

In just over 100 days, Americans will elect our next president of the United States. And for conservatives, one issue looms over the rest: the Supreme Court.

If that sounds familiar, it’s because we’ve been saying it every four years for longer than many of us have been alive. But it’s truer now than ever: over the next four years, the president could appoint four or more justices who retire.

Even worse, if Biden is elected president voters will almost certainly elect Democratic majorities in the House and Senate, to give Democrats full control of all three branches of government.

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In addition to replacing retiring judges, Democratic activists would use Biden to execute their radical plans to pack the Supreme Court and lower courts, adding new seats and filling them with liberal judicial activists.

This isn’t speculative: Democrats are openly saying this is their goal. President Trump’s historic transformation of the federal judiciary will be canceled. The Founders’ insurance policy, the federal judiciary, revoked.

Game over, America.

The transformation of the federal judiciary has been the president’s most significant achievement in his first term.

The president has appointed for life 200 Article III judges who understand they are America’s last line of defense when politicians overreach or bow to woke mobs.

Most notably, President Trump solidified the conservative majority on the Supreme Court with his appointments of Justices Neil Gorsuch and Brett Kavanaugh. But Trump’s record-shattering transformation of the critically important federal courts of appeals is almost as important because these courts are the last stop for more than 99 percent of all federal appeals.

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Conservatives must not lose heart and give up in this fight because of momentary setbacks. Too much is on the line this November. We are on the cusp of a monumental, generational victory—or defeat.

Admittedly, it has been a tough month for conservatives at the Supreme Court. Chief Justice John Roberts—appointed by President George W. Bush—voted with the Court’s four liberals to strike down perfectly reasonable regulations of abortion, despite vigorously dissenting from a similar decision just five years ago.

Roberts also sided with the liberal justices to reject a California church’s plea to hold worship services despite Governor Gavin Newsom’s discriminatory coronavirus restrictions, which allowed businesses to reopen but not churches.

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Six justices essentially rewrote Title VII, the federal law that prohibits sex discrimination in employment, to now forbid discrimination on the basis of sexual orientation or gender identity.

It’s hard to argue that what the Court did reflects what the public understood the law to mean in 1964—or any other time since then.

But even if you believe these decisions are deeply wrong, they are aberrations—even Homer nods. This is still very much a conservative Supreme Court, even with the Chief Justice’s incremental, sometimes frustrating political approach.

President Trump’s two Supreme Court appointees joined the three other conservatives and delivered big wins that we should all cheer.

In a hugely consequential civil-rights case, the 5-4 conservative majority struck down anti-Catholic bigotry embodied in “Blaine Amendments” across America, which means religious schools in 38 states will no longer be denied state funding that is available to nonreligious private schools.

The conservative majority put a stake through the heart of Elizabeth Warren’s unconstitutional but favorite agency, the Consumer Financial Protection Bureau, by invalidating the provision that prevented the President from firing the lawless CFPB director.

The conservative majority also held, again, that the government cannot force nuns to buy ObamaCare birth control. And the conservatives expanded the protections for religious employers under Title VII, ensuring that Catholic schools can make employment decisions consistent with their religious beliefs (and minimizing the damage done by the Title VII rewrite).

As a result of these monumental conservative victories, working-class (especially minority) families have more school choice—and can give their kids educational opportunities that privileged politicians and judges enjoy for their own children.

The D.C. swamp creatures are on notice that their powers have limits, and they can be held accountable. The conservative majority stands ready to drain the swamp. And leftwing zealots are once again triggered with rage that they can’t force the Little Sisters of the Poor to subsidize their birth control.

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President Trump truly hit a grand slam with his appointments of Gorsuch and Kavanaugh.

If the last month made you uneasy, consider that in the critical early years of their tenure, Gorsuch and Kavanaugh have already shown considerably more backbone than other Republican nominees who often went wobbly, such as President Ronald Reagan’s appointees Justices Sandra Day O’Connor (replaced by rock-solid Justice Sam Alito) and Anthony Kennedy (replaced by Kavanaugh), along with Justice David Souter, President George H.W. Bush’s disastrous first appointment to the Court.

Now compare Gorsuch and Kavanaugh to the average Democrat appointee to the Supreme Court, and you’ll find that reports of the death of the conservative legal movement are silly.

Justices Ruth Bader Ginsburg and Sonia Sotomayor think Congress can force nuns to buy birth control and Catholic schools to employ teachers who openly defy Catholic doctrine.

Justices Ginsburg and Stephen Breyer think the death penalty, which is mentioned in the Constitution, might be unconstitutional.

Then again, all four of the liberal justices think that practically any regulation of abortion is unconstitutional, and that certainly is not mentioned in the Constitution. And of course, the Democrat appointees vote in lockstep on practically every case with political overtones.

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Here are the facts: Justice Ginsburg will be 90 before the 2024 presidential election. Justice Breyer is 81. Conservative stalwarts Justices Clarence Thomas and Samuel Alito are in their 70s. Who do you want choosing their successors?

If President Trump were to replace even one of the liberal justices, which a second term would all but guarantee, the effects would be felt for generations.

For the first time in a century, Americans could trust that the Constitution, not politics, would prevail at the highest court in the land.

If Joe Biden (and the woke Maoists who would run his administration) replaced even one of the conservatives, the consequences would be severe and just as long-lasting.

Think about how it felt to lose a couple of big cases this term. Think about how it would feel to lose every big case, every term. And this doesn’t even factor in Biden’s complete undoing of President Trump’s record-shattering transformation of the federal courts of appeals.

It took conservatives decades to reach this moment, and we cannot back down with victory in sight.

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We cannot surrender our great republic to the woke mob because of frustration over any one case or any one term.

We cannot tell our grandchildren we didn’t stand for America and liberty at this pivotal moment.