Judges are supposed simply to apply the law. As Chief Justice Roberts rightly put it at his confirmation hearing, a judge’s job is like a baseball umpire, merely to “call balls and strikes” (sadly, a standard he has not always lived up to).
Americans have sharply different views on many policy issues, from abortion, to marriage, to religious faith, to the death penalty, to immigration, to the fundamental divide between socialism and free enterprise. In a democracy, those decisions should be made by the voters, not by unelected judges with life tenure.
But decades ago, activists on the far left decided that democracy was too cumbersome. It was too slow. And it was too difficult to persuade their fellow citizens that their policy prescriptions were sound and wise. So instead, they resorted to litigation, trying to get judges to mandate the public policy outcomes they wanted—even if the voters disagreed.
To be sure, judges should strike down laws that violate the Constitution. Some journalists and commentators have tried to define judicial activism as any time that a court strikes down any law. And, in an embrace of moral relativism—a justification that “everybody does it”—they have argued that Republicans want conservative judicial activists just like Democrats want liberal activists.
For anyone principled, that is not the case. It is “activist” any time a judge disregards the law to follow his or her own policy preferences. That means it is activist whenever a judge creates a new legal “right” not found in the Constitution. And it is also activist whenever a judge tries to erase an actual right protected in the text of the Constitution.
I don’t want Republican judges or Democratic judges. There are many policy issues about which I personally am passionate (e.g., low taxes, low regulations, lots of jobs, school choice, securing the borders, a strong national defense). But it’s not the role of a judge to mandate policy outcomes with which I happen to agree. Instead, I want constitutionalist judges who will honor their oaths to follow the Constitution.
The Court was right in Brown v. Board of Education (1954) when it struck down segregated public schools because they violated the Fourteenth Amendment’s guarantee of “equal protection of the laws.” The Court had been wrong in Plessy v. Ferguson (1896)—which Brown overruled—when it previously upheld segregated schools because the Justices personally supported the policy of segregation.
The Court was also right when it struck down the District of Columbia’s draconian laws prohibiting gun ownership in D.C., in Heller v. District of Columbia (2008) because it violates the Second Amendment right “to keep and bear arms.”
Conversely, the Court was wrong in Roe v. Wade (1973) when it created a brand new “right” to abortion found nowhere in the text of the Constitution. For two centuries, state legislatures, elected by the people, had decided questions of abortion policy. The justices took that power away by fiat.
For the same reason, the Court was wrong in Obergefell v. Hodges (2015) when it mandated same-sex marriage laws nationwide. You may personally agree or disagree with gay marriage, but, for two centuries, marriage laws had been policy decisions for elected legislatures—which meant different states could come to different conclusions about the proper standards. Instead, a majority of justices decided to strike down every state marriage law with which they disagreed.
All of us know that the Supreme Court is supposed to protect our constitutional rights. It is also charged with securing our Constitution’s defining structural features, federalism and the separation of powers. Both doctrines protect Liberty by dividing power, by establishing checks and balances to prevent any branch of government from becoming too powerful. The alternative, unchecked government power—while commonplace in dictatorships across the globe—would fundamentally alter the nature of our nation and what it means to be an American.
Over the past six decades, the Court has arrogated to itself far too much power—well beyond what it is entitled to under the Constitution. It has seized this power at the expense of Congress, the executive branch, the states, and We the People alike.
While it has grown in power, the actual functioning—the how and why—of the Court remains a mystery to many. They don’t understand just how precarious our constitutional liberties and core constitutional structures can be when they fall into the hands of rogue judicial activists. This book aims to explain what really happens at the Supreme Court—by relying on my own experience as a longtime Supreme Court advocate.
One doesn’t need to be a lawyer to enjoy this book. Or, I hope, to learn something meaningful from it. All you need is to have is an interest in preserving the constitutional liberties we enjoy as Americans. Or to have an appreciation for federalism, separation of powers, and national sovereignty. If you’re interested in the Constitution, or in Liberty, or in your own fundamental rights, then this book is for you.
This book will discuss fundamental rights and contentious policy issues that go to the heart of our Republic: free speech, freedom of religion, the right to keep and bear arms, abortion, U.S. sovereignty and international law, the death penalty, race, and democratic control over our elections.
It will examine eight critical constitutional issues and landmark Supreme Court cases that every American should know. Some of these decisions were good, and some of them were bad. Most of them were decided by just one vote. Almost all of them I helped litigate.
It gives the back story behind these vital cases. What was really going on. Why they matter. What the Court did. How it changed America. And how so many of our precious liberties and freedoms hang so precariously in the balance.
The reader will understand why judicial selection matters so much—and how to make sure we get our Supreme Court picks right going forward.
Before I was elected to the Senate, I made my career as a Supreme Court litigator, and I had the blessing to play a part in defending many of our foundational liberties. I had the opportunity to defend
