Time to Play Offense

At the Supreme Court, conservatives have been playing defense since at least the 1950's. It's now time for the Left to play defense and for conservatives to be bold.

The main reason we’re seeing the Left attack the Supreme Court, and individual justices, is that it’s furious, and quite worried, that for the first time at least since Eisenhower was President, if not well before then, the Court has a reasonably workable conservative majority. Apart from the usual Leftist feeling of entitlement, the existence of that majority threatens key Leftist goals, such as unlimited abortion and black supremacy in college admissions almost completely at the expense of higher-achieving Asian and white students. Next Term, it threatens something perhaps even dearer to the Leftist heart, the near omnipotence of the administrative state. The Chevron doctrine, under which courts defer to any even marginally plausible agency interpretation of the statutes under which they (supposedly) operate, is going to be examined. Many, including me, expect the Chevron doctrine to be significantly curtailed or eliminated altogether. Just this last Term, we saw the precursor of this — the unapologetic invocation of the major questions doctrine, which at present is the most important exception to Chevron.

When everyone and his brother thought that Hillary was going to win the 2016 election, a Harvard law professor (I forget which one) (Ed. note: Prof. Daniel Lowenstein reminds me that it was Mark Tushnet in his May 2016 article, “Abandoning Defensive Crouch Liberal Constitutionalism”) published a piece about how liberal SCOTUS appointments could aggressively re-shape the law through a frankly unbridled use of judicial power. While it’s tempting to want to do the same thing now — only in a conservative direction — it’s a temptation we should avoid. Two of the most important principles of legal conservatism as I view it are (1) that courts in particular and law in general should remain independent of politics and political agendas; and (2) that courts should remain passive. That is, in a system of limited government, the courts wait for concrete disputes to be brought to them in the form of cases and controversies. Courts are in a sense shaped by politics, sure, because judges are nominated by the President and confirmed (or rejected) by the Senate. But courts are not and should not themselves become political actors.

We would do best to remain faithful to these principles. But that doesn’t mean we should do nothing. We can act in the political branches with a new-found and rare confidence that the Supreme Court will cast an approving eye when the inevitable challenges to conservative initiatives appear.

What I’m saying is not exactly revolutionary. It’s a slightly gussied-up version of an old idea: Strike while the iron is hot. It’s hot now, so let’s get moving.

I have two things specifically in mind.

— We now know that it is unconstitutional for colleges to use race as a factor in admissions decisions. Both Paul and I expect the academic establishment to do everything it can to flim-flam the new regime by one dishonest means or another. White and Asian students who continue to be victimized by the disguised continuation of colleges’ preexisting system of racial balancing of course can, and should, sue. But we can do more.

Specifically, we should introduce in Congress and the state legislatures criminal statutes to this effect (readers will probably be able to improve on my wording):

A. Any person employed by an institution of higher learning who uses race as a factor in deciding whom to admit and/or whom to exclude from admission, or who aids, abets or assists in doing so, shall be guilty of a felony and shall be punished by a term of imprisonment of from one year to five years, and a fine of up to $1,000,000.

B. When a person denied admission in violation of Section A is a minor at the time the decision to deny is made, the offense shall be deemed child abuse, and shall be punished by a term of imprisonment of up to five years, but in no event less than two years, and a fine of up to $1,000,000, but in no event less than $500,000.

C. It shall be a defense to a charge under Sections A and B that the accused reasonably considered race as relevant, not in itself, but only as displaying an applicant’s unique character and history. The accused has the burden of establishing this defense by clear and convincing evidence showing that such consideration was not a subterfuge for consideration of race per se.

Is that harsh medicine? You bet. But it’s needed. As Paul has shown, and as is otherwise becoming crystal clear anyway, there is going to be insolent, aggressive and massive resistance to the Court’s holding that the Equal Protection Clause means what it says, and even applies to — gasp! — whites and Asians. Those who believe in equal protection do not have to, and should not, just wait for the the Left to play its game with all its dodges and evasions and subterfuges and then respond with a civil suit, one applicant at a time. If the DEI crowd in the admissions office wants to play this way, they need to know that their skin will be in the game, and not just via some civil judgment years down the road that the university will pay for them anyway. They need to be looking at the slammer. I promise you that, after the first one sees it up close, the operational resistance to actual equality of treatment will crater.

— Sexual disfigurement and mutilation of children going under the name of “gender affirming care” is now all the rage. We don’t need to, and we should not, be bullied into putting up with this. The complication is that, for the very, very rare child, there there does seem to be such thing as gender dysphoria, and when that is the case, medical intervention may well be justified.

This is, to say the least, not my area, so I need to tread gingerly. But at the minimum, we need to take steps, again involving criminal law, to see that children are protected from having their bodies ravaged simply because of trendy, if grotesque, Wokeness. Accordingly, we should adopt statutes that forbid “gender affirming care,” or anything going under that name or meeting its description, until several conditions are met. The statutes would be enforced by substantial criminal penalties.

The conditions are:

First, that no medications may be administered or surgery undertaken without court approval.

Second, that the court be satisfied that the child understands as best as he can given his age, what will happen to him if the proposed medical plan goes forward. If the child does not understand or expresses misgivings, approval may not be given.

Third, that the court ascertain that both parents believe the treatment is in the best interest of the child and have adequate knowledge to make that judgment.

Fourth, that two independent, court-appointed doctors attest, after examining the child, that treatment is in his best interest in both the short and long term, and specify what the treatment plan will entail.

And fifth, as noted, that if these provisions are not met, the person or persons who successfully solicited and who gave the “treatment” will face substantial criminal sanctions including incarceration.

I’m painfully aware that this regimen entails government involvement, via the courts, in what ordinarily should be private family life, and that as a general proposition, we have too much government involvement already. But the emergency we’re facing is real; the “gender affirming care” people are drunk with themselves; and the children they have in their maw face catastrophic and permanent disfigurement. The reason we need to play offense (per my title) is that the kids are too young and too subject to manipulation to play it for themselves.