Who would have thought we’d reach a point in history when the entire purpose of control of the Senate is to confirm judges so that the legislating can all be outsourced to the courts? Yet here we are: a vacancy for the swing vote on the Supreme Court is now the most consequential decision of our time.

Despite the opportunity to move the court to the right, I still believe the best thing for the country and for conservatives would be to push for a grand bargain – taking the key political issues of our time out of the courts and returning them to the political branches. In the long run, it’s the right thing to do, and judicial supremacy, will never be a worthwhile tradeoff for conservative political outcomes. Nonetheless, the Left built this system; now it’s time for them to lie in the bed they made. Trump should leave nothing undone to nominate the most verifiable conservative on the important issues of the day. Democrats will go nuclear on anyone he picks. He will not get brownie points for picking a stealth nominee who is unknown. I agree with those including Mark Levin who believe someone with a well-known philosophy like Mike Lee would make the most sense given the political dynamics of our time.

With that said, how much will really change even if Trump nominates someone like Mike Lee to fill Kennedy’s seat?

Anthony Kennedy wasn’t the only problem

We must remember that, even though we would have a clear 5-4 majority on most issues, there are a number of factors sustaining the judicial Gomorrah into which we have descended. It took decades to descend to the abyss, and we won’t escape it with one more Supreme Court pick.

Several years ago, I listed a dozen reasons why the court system is irremediably broken on political issues and why the judiciary seems to be (recent victories not withstanding) a one-way street and a dead end for conservative political outcomes. Ultimately, conservative justices, to their credit, will always be consistent and intellectually honest. But because of the inconsistency and intellectual dishonesty of the liberal justices, we too often lose politically in the long run. This is why we need to move, in general, toward taking political issues out of the courts.

A number of circuit courts and an endless number of district courts will remain irrevocably anti-constitutional, even if Trump secures two terms as president. There are a slew of new-age “resistance” types on the bench, and no number of conservative judges could counteract their disregard for the Constitution and all legal norms. So long as the other two branches show no signs of pushing back against the forum-shopped nationwide injunctions, the Left will always be able to create jurisprudential and political velocity for their radical ideas and grind our national security, immigration policies, abortion regulations, and election integrity laws to a halt. They control the law schools, all of the big litigators (the ACLU, NAACP, etc.), and direct most of the suits at the court. Thanks to their ability to get insane rulings from lower courts in the first place, they are often able to win in the Supreme Court with a combination of outcomes-based jurisprudence from the four leftists and a quirky principled doctrine from one conservative on a given issue. This is what we saw from Gorsuch in a big immigration case and from Thomas in North Carolina redistricting this past year.

There are times when the Supreme Court stays these radical lower court rulings, but some of them fester for years and are never restrained or overturned. Consider that the radical ruling from Judge Dolly Gee forcing DHS to release so many illegal aliens and causing so much political upheaval has been allowed to fester for three years. Perhaps the most radical decision in recent memory is several lower court judges ruling that it’s illegal for Trump not to violate immigration law and sovereignty and that he must continue Obama’s amnesty. The Supreme Court refused to nip it in the bud, and foreign nationals are still being given Social Security cards against the law.

So how much of this will change with a new pick?

Roberts as the new swing vote?

The 800-pound gorilla in the room after the retirement of Anthony Kennedy is Chief Justice John Roberts. While he still adheres to the Constitution on most big issues, he has notably sided against conservatives on a number of lesser-known cases as well as his egregious decisions on Obamacare, Arizona’s immigration law, and blaming banks for failing blue cities. In addition, he views himself as the guardian of the high court’s institutional integrity and doesn’t want to be seen as shifting the court too far in any direction. The problem is that the court has moved so far to the left on so many issues in recent years, as Scalia warned at the end of his life, and the many lower courts are more radical than ever before. As such, the Supreme Court, in order to return to the Constitution, is going to have to move abruptly in a different direction from the rest of the legal system.

Will John Roberts become the new swing vote with Kennedy’s seat flipped to the right?

There will likely be a wide gulf between cases pertaining to new anti-constitutional jurisprudence percolating in the lower courts and cases that would implicate long-standing anti-constitutional theory. On the former, I believe Roberts will likely remain with conservatives. Therefore, having another reliable vote will give us a 5-4 majority to shut down the shenanigans in the lower courts – at least gradually. But on questions of overturning Roe and Obergefell and other long-standing, bad anti-constitutional precedent that the Left has successfully enshrined into civil rights and the 14th Amendment, I have a hard time believing Roberts consider overturning these precedents.

Four is also a magical number on SCOTUS

Part of conservative frustration with the Supreme Court is that the justices have been slow to reverse some of these off-the-wall opinions from lower courts on critical policy issues. It takes four members willing to grant an appeal in order to consider a case. Clearly, the denial of such appeals in many important cases related to election integrity laws and driver’s licenses for illegals demonstrates that not only Kennedy but also Roberts was unwilling to take up those cases. Again, this is part of his philosophy of trying to avoid the appearance of an activist court. But it takes an activist Supreme Court to actively undo the activist lower courts, who should never officiously intervene in so many of these issues to begin with. It’s not activism to shut down unlawful activism.

This is why a new justice is so important. We will now have four votes to consider these cases without Roberts. And Roberts has enough respect for the Constitution that he’d be hard-pressed to go along with new revolutionary ideas from lower courts, even if he is reluctant to initially take up the cases.

I see a lot of potential for progress on this front on the issues of guns, religious liberty, and codifying the Rainbow Jihad into Title XII of the Civil Rights Act. (For more from the author of “A New SCOTUS Justice: What Will Change and What Won’t” please click HERE)

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Yesterday, the Supreme Court ruled in favor of cake maker Jack Phillips in the Masterpiece Cakeshop case. Justice Kennedy wrote the decision for the Court, joined by six other justices, both liberal and conservative. Justices Gorsuch and Alito concurred, Justices Thomas and Gorsuch concurred, Kagan and Breyer concurred, and Justices Ginsburg and Sotomayor dissented.

There is very little principled analysis in any of the Court’s five opinions except for that of Justice Thomas, who concluded that Phillips was denied his freedom of speech.

Justice Kennedy’s majority opinion focused mainly on the despicable treatment Phillips received in front of the Colorado Civil Rights Commission. In particular, Justice Kennedy noted that the Commission ruled against Phillips for his refusal to bake a pro-gay cake, but ruled in favor of three other bakers who refused to bake anti-gay cakes.

The significance of the majority opinion is nicely summed up in its last paragraph: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

In other words, this decision is essentially confined to his facts — ruling for Jack Phillips because the Colorado commission was openly hostile towards Phillips’ religious beliefs. Every future case involving such a state “public accommodations” law, however, will be a balancing act, conducted by federal judges, pitting homosexual “dignity” against sincere religious beliefs.

Justices Kagan and Breyer, though joining the majority, wrote separately to state their belief that there were good legal reasons for the state Commission to have reached different opinions in the pro-gay and anti-gay cake cases. Justices Gorsuch disputed that notion.

Next, Justice Thomas wrote separately to address Phillips’ Free Speech claim, since the majority had resolved the case solely on a Free Exercise basis. Thomas claimed that wedding cake baking is an inherently expressive activity, and to force someone to bake a certain wedding cake forces them to express themselves in ways they may find offensive. Importantly, Justice Thomas challenges the notion that the most important thing in the case is the protection of the “dignity” of homosexuals. He noted that “Concerns about ‘dignity’ and ‘stigma’ did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross … conduct a rally on Martin Luther King Jr.’s birthday … or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to ‘Bury the n….’”

Finally, Justices Ginsburg and Sotomayor wrote espouse their apparent belief that the most important bedrock principle in American law is the tenet that “Gay persons may be spared from ‘indignities when they seek goods and services in an open market.’”

In essence, the Supreme Court kicked the can down the road in its failure to provide a clear ruling whether the First Amendment prohibits the application of a state law prohibiting discrimination on the ground of sexual orientation to a Christian cake baker or other businessman who refuses service celebrating same-sex marriage.

It was good to see that Justice Kennedy gave the radical homosexual political movement a dose of their own medicine of Romer v. Evans, reversing the ruling of the Colorado Civil Rights Commission against a Christian baker on the ground that the Commission was motivated by overt hostility to the baker’s Christian faith. In an opinion that only Justice Kennedy could have written was the lesson that Thumper’s mother taught — “If you can’t say something nice, don’t say nothing at all.” One wonders how the case would have come out if the Colorado Commission had not been overtly hostile to Jack Phillips.

Indeed, the several opinions issued by the Court in this case are written self-consciously nice. In contrast to the bloody battlefield of Obergefell, the justices collectively held back their ammunition, calling for tolerance, fairness, and neutrality, hoping by their surface collegiality to inspire a gentler spirit within which to paper over an unresolvable conflict that the Court itself has created and imposed upon the American people. The Court’s call for “neutrality” however, abandons its duty to say what the law is.

The best can be said about this decision was what Justice Thomas noted in conclusion, “it seems that religious liberty has lived to fight another day.” However the Masterpiece decision certainly provides little guidance for how future cases will be decided. The decision does not even resolve the Arlene’s Flowers case, which remains pending on a petition for certiorari before the Supreme Court.

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