In Latest Term, Supreme Court’s ‘Conservative Majority’ Plays By The Left’s Rules

Many conservatives are celebrating a series of strong decisions from the Supreme Court, including the 6-3 U.S. v. Skrmetti decision upholding Tennessee’s ban on transgender procedures for minors. This is an incredible win, and full credit should be given to the culture warriors who fought tirelessly for this cause.

Nevertheless, this temporary victory provides another opportunity to reflect on the nature and function of our current Supreme Court and our political regime more broadly. I have written recently about why the Supreme Court still poses a significant obstacle to national restoration even when it allegedly grants “wins” to conservatives. The latest court term demonstrates that yet again.

The current Supreme Court term demonstrates that even the way the Supreme Court evaluates cases about religion, free speech, and LGBT demands impedes the restoration of American virtue and self-government. The Supreme Court hurts the conservative cause by retreating into leftist paradigms of constitutional construction and lending these positions false legitimacy.

Start with the meaning of words.

Transgender woman is an oxymoron and non-existent. But ever since they captured the word “gay” they have learned that we easily concede the vocabulary.

Rights vs Privilege is another example. The left says ICE violates the Rights of illegals. ICE supporters accept the false language of the left. To live in the US is a Privilege, not a Right. To be removed from the US is removal of a Privilege and has nothing to do with Rights.

On the other hand, the longer an illegal is held in a detention center and not removed from the US the more it looks like violation of Rights and removal of Privilege is ignored.

The authors concern about fighting the enemy according to the enemy's rules is well taken.

For example, the idea that we should dispose of the Constitution by discarding the founders understanding of the true role of the state vis-à-vis religion and morality consigns conservatives to a losing argument in many cases and is destructive of constitutional norms.

However, the facts on the ground concerning, for example, the role of religion in colonial and early constitutional America that informed the framers' understanding of constitutional principles, might not apply today, rather the facts on the ground today might lead to very serious harm to conservative causes and, by extension, to society in general.

The Judeo-Christian assumptions about morality were assumed by the framers to be proper for the state to accept and enforce free from judicial intermingling about the desirability of those assumptions. In part, the authors advocating a return to that legal framework.

There are increasing geographical Muslim oblasts in parts of America such as Michigan in which Islam is gaining political control. Do we want a constitutional architecture in which that Muslim political majority can inflict sharia on society? Do we want to yield control of the schools to that philosophy?

At the time of the founding of the Constitution the argument was over Protestant vs. Catholic doctrine which certainly might ignite serious dispute, but did not threaten the essential common understanding of the proper nature of society and man's place in the world. Islam is different.

The essential nature of Islam is different from the Judeo-Christian faith that leads to irreconcilable differences about the role of the state and the virtue of a citizen's freedom of choice. We will have to find a doctrine that somehow protects that virtue while protecting that same citizen's right to his religious conviction.

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