Then to Medellín v. Texas, a case I argued and won twice, upholding U.S. sovereignty and striking down both the World Court’s and the president’s authority to intervene in our criminal justice system. Our right to be a sovereign and free Republic is at the very core of the American experiment, and I was privileged to defend the sovereignty of both Texas and the United States against the attempted usurpation by the United Nations. For a host of reasons, it was the single most fascinating case I ever litigated.
In Gonzales v. Carhart, where the Supreme Court upheld the federal ban on the gruesome practice of partial-birth abortion, I led the States in defense of the federal law, and we prevailed 5–4, the exact opposite outcome that the Court had reached just seven years earlier in striking down a nearly identical Nebraska law, 5–4. The principal difference? Justice Alito had replaced Justice O’Connor, and that one vote was the difference as to whether partial-birth abortion would be deemed required by the Constitution.
We then turn to Citizens United v. Federal Election Commission, a case much reviled by the left and which they desperately seek to overturn. Citizens United upheld the free-speech rights of citizens to engage in the political process, to speak out, and to criticize candidates for federal office. Free speech is indispensable not only to our First Amendment but also to our functioning democratic process. By a vote of 5–4, the Supreme Court properly held political speech to be at the heart of the First Amendment’s free speech protection. In response, Senate Democrats introduced a constitutional amendment to repeal the free speech protections of the First Amendment. I led the fight against that foolhardy amendment, which thankfully failed, but not until after every single Senate Democrat had voted for it.
We continue with Kennedy v. Louisiana, an unfortunate case, where five justices deemed it unconstitutional to impose the death penalty for the reprehensible crime of child rape. I argued the case in defense of state laws allowing the death penalty for the most egregious and violent child rapists. Capital punishment has long been controversial politically, and different states have reached different policy judgments about whether and when it should be allowed. The text of the Constitution repeatedly refers explicitly to the death penalty, but that didn’t stop five justices from prohibiting the death penalty altogether from 1972 until 1976. In the decades since, the Court has added more and more arbitrary constraints on capital punishment, resulting in decades-long delays in the carrying out of sentences. And just one additional justice could shift the Court back to banning the death penalty altogether.
We then turn to two more cases that I helped litigate at the intersection of judicial authority and democratic control of elections: Bush v. Gore and LULAC v. Perry. The former, of course, resolved the 2000 presidential election after thirty-six roller-coaster days in which the nation and the world waited for the results to be determined. The latter involved a challenge to the Texas redistricting plan, where plaintiffs argued that the Constitution prohibits state legislatures from taking politics into account in drawing congressional districts. In both instances, the Court was asked to substitute its preferences and judgment for that of the voters—to put courts instead of the people at the center of elections—and in both cases, the Court voted 5–4 to decline that invitation.
And finally, we’ll examine past Supreme Court nominees and look at how we can make sure we get our Supreme Court picks right moving forward. On this front, the two parties do not perform equally. Democrats have a nearly 100 percent success rate; in major hot-button cases, their nominees vote exactly as they’re supposed to vote almost without exception. They vote consistently for the policy outcomes favored by liberals, regardless of the law or the Constitution. Republicans, on the other hand, have a much worse record.
Many of the worst liberal judicial activists were appointed by Republicans. Earl Warren, William Brennan Jr., John Paul Stevens, David Souter, Harry Blackmun—the author of Roe v. Wade—were all Republican appointments.
In terms of justices’ actually following the law and following the Constitution, Republicans have gotten it right 50 percent of the time at best. We’ll examine the pattern of differences between those nominees who honored their oath and those who did not. And we’ll lay out what to look for in future Supreme Court nominees.
Every single vote on the Court matters in every major case the Court hears. There is no room for error. On too many issues, we are one vote away.
Every American should understand what was at stake in these crucial cases and what is at stake in appointing Supreme Court justices. Every American who loves and cherishes the Constitution should be profoundly concerned about what losing the Supreme Court would look like—about what that would mean for these pivotal issues and for so many others. But every American who loves and cherishes the Constitution should also be inspired by the prospect of what securing the Supreme Court for a generation will look like.
This book is not intended just for academic or historical or legal purposes. Every one of these issues—every one of these rights and bedrock structural provisions—will be discussed, debated, and very much at stake in the 2020 election this fall. Judicial selection, especially for the Supreme Court, will also be very much at stake in the 2020 election. The Supreme Court will be on the ballot. And all of these issues will be at stake in elections after that of course.
The Supreme Court hangs in the balance. Five justices on either side can preserve our liberties or destroy them.
