By Matthew D. Carling, Esq.

(or) The Purist Vote: American Conservatives Playing Russian Roulette

Every four years, American voters eagerly line up to choose their favorite candidate for President.  We brim with hope for a leader who sees the world as we do—someone a lot like us.  But once our ideal contender is eliminated from the field, disappointment often turns to disgust.  Voters by the thousands remove themselves from the political battlefield and refuse to participate further.  It’s either my nominee or nothing.

Consoled in the belief that one vote won’t matter, the disenfranchised gently beguile themselves into apathy.  Surely four more years of any single administration cannot possibly unravel the rich heritage of our nation.  Others withdraw out of a need to take a moral stand, indignant over the flaws they would otherwise feel they are endorsing with their vote.  Some even choose strategic revenge, hoping to punish less-pure conservatives with four more years under a staunch liberal president—a small price to pay if the lesson finally awakens such “useful idiots” from their folly.  After all, how much damage can one president leave that can’t be undone by his successor?

These might be valid points except for one detail.  A president’s most lasting legacy is not usually the bills he signs into law, his executive orders or even the wars over which he presides.  It is his unique role in shaping the entire third branch of government, the Supreme Court, which has power to overrule the others.  Indeed, his nominations to the bench can alter our society for generations.

Consider George W. Bush.  With the retirement of Justice O’Connor and the passing of Chief Justice Rehnquist, President Bush reshaped the Court with his nominations of John Roberts and Samuel Alito, both thoughtful and predominantly conservative jurists—especially Alito.  Whatever Bush’s faults, these two acts could benefit our nation immensely for generations to come.  President Obama, on the other hand, countered by replacing two activist jurists (Souter & Stevens) with two more: Elena Kagen and Sonia Sotomayor, each fully in step with the current administration’s societal and political agenda.  These appointments have not disappointed the progressive left.

How much does this matter?  For most people it depends on the issue.  Until recently, for millions of Americans in major cities across the nation, owning a handgun was severely restricted if not banned entirely.  For decades, Second Amendment advocates had wistfully dreamed of the Supreme Court striking such laws, but were afraid to bring forth a case.  What if they lost?  Might the Court instead end up nullifying the Second Amendment?  On June 28, 2010, with Bush’s appointees the Court finally acknowledged the original intent: that no government, whether federal, state or local, may deny a citizen the right to keep and bear arms.[i]  The victory, however, was a narrow one—only 5 to 4.  If one more left leaning justice had been appointed, it would have gone the other way.  Dissenting, Justice Stevens argued that owning a personal firearm was not a “liberty” interest protected by the Constitution.  Likewise, Justice Stephen Breyer stated, “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.”  With a single vote, this suppressive notion would have been the majority opinion.

In just the last decade, this same narrow margin has preserved school choice laws at the state level, but unfortunately tipped the other way and failed to roll back eminent domain abuse.  The Constitution’s safety in the court is fragile indeed.

With four Justices over age 70—and perhaps a mere pizza away from a heart attack—it’s likely that the next president will leave a lasting legacy by nominating at least one, and quite possibly four Supreme Court justices.  The vital question for Americans is whether the current president will continue to appoint activist judges who will subordinate the individual, his rights and his property to the whims of government

FDR appointee William O. Douglas, whose crusades in the Supreme Court spanned nine presidential terms.

Just how enduring is the impact of these appointments?  It seems that in every election cycle the popular candidates revisit the proverbial issue of “reproductive choice,” that ubiquitous notion espoused in the 1973 landmark decision of Roe v. Wade[ii] (7-2).  Yet neither its critics nor champions attribute any role in its legacy to President Franklin D. Roosevelt.  In fact, FDR appointed Justice William O. Douglas in 1939 who helped form the majority in that ruling.  Justice Douglas served on the High Court for 36 years—a span encompassing nine presidential terms. Who else left America a legacy shrouded in Roe’s sophistry?  President Eisenhower (Justices Brennan & Stewart), President Johnson (Justice Marshall), and President Nixon (Justices Burger, Blackmun, and Powell).  Only Justices White (Kennedy) and Rehnquist (Nixon) dissented.

In other words, the presidential elections of 1968, 1964, 1952, and even 1932 still reverberate in the legal, moral and political debates of 2012!

But what if Landon had beaten FDR in 1936? What if enough voters instead preferred Senator Robert Taft of Ohio over Ike?  Looking to maintain the status quo, would our political landscape be different if Humphrey nixed Nixon?  An altered Supreme Court makeup would indeed change the weighty deliberations in barbershops across the nation.

Consider the legacy of Justice Brennan (Eisenhower) and his preference to ignore the original intent behind the writing and enactment of the Constitution.  In Torcaso v. Watkins[iii] he stated, “A too literal quest for the advice of the Founding Fathers upon the issues of [First Amendment] cases seems to me futile and misdirected.”  He argued for a “living constitution” disregarding history and precedent for a more liberal approach that reflects modern “needs” through a constitution that the Justices themselves write.  Justice Brennan retired from the Court in 1990 after authoring numerous activist opinions that undermined original intent and eroded state sovereignty rights.  How do you “Like Ike” now?

Buchanan’s 1856 presidential campaign: The unwitting seed of the infamous Slaughterhouse ruling and its modern consequences.  Today, such seeds are more strategic.

But such presidential legacies reach even further.  In his book, Death Grip, chief constitutional litigator at the Goldwater Institute, Clint Bolick, illustrates how judicial mischief can last well over a century.[iv]  In a decision known as the Slaughter-House Cases[v], New Orleans butchers challenged a state law written shortly after the Civil War that granted an exclusive monopoly over meat packing to a single favored corporation.  The monopoly devastated competitors.  Yet in 1873, the Supreme Court refused to declare the legislation unconstitutional.  Instead, in a rare 5 to 4 decision the court held to a narrow interpretation of the freshly minted 14th amendment that neutered its “privileges or immunities” clause.  The original intent was the notion that all state and local governments should be prevented from abridging those sacred “privileges or immunities” of citizenship that protect life, liberty and the pursuit of happiness.  Bolick makes a powerful case that this included preserving one’s freedom to earn an honest living without arbitrary infringement.  Yet by a one vote margin the court gutted the original meaning.  The majority justices were appointed by Presidents Buchanan (1), Lincoln (2), and Grant (2).  As a consequence of this 139 year old decision, most courts are still reluctant to overturn outlandish regulations that trample economic liberty.  The result?  A great deal of the absurd overregulation and meddling in business that we see today.  Yet this bitter fruit of the court was planted in Buchanan’s presidential election in 1856!

While contemplating the doctrine of judicial review, Thomas Jefferson stated, “[t]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”[vi]  Five years later he noted, that “[the judicial branch] of the Government was at first considered as the most harmless and helpless of all its organs.  But it has proved that the power of declaring what the law is, ad libitum [at one’s pleasure], by sapping and mining, slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”[vii]  Just one more left leaning appointment to the Supreme Court could easily leave us with a lasting legacy that nearly obliterates the rights and responsibilities that come with life, liberty, and the pursuit of happiness.

Of course, even President Reagan made mistakes in selecting nominees to the bench, as noted with the appointments of swing justices O’Connor and Kennedy.  But with the acute heating of the culture war in recent decades, more careful scrutiny is now applied on both the political left and right before any nominee is ever presented to the senate.  All sides recognize today that the Supreme Court has become ground zero in the battle to shape America’s future.

A new high-water mark may now have arrived with the Supreme Court’s ruling on Obamacare.  For all the drama leading up to it, perhaps the most disconcerting point was made in a mere photo caption in Forbes, stating: “The most powerful man in America: Associate Justice Anthony Kennedy.”  Although it turned out to be Justice Roberts, the caution remains.  When a single “swing” judge bears this much power, it should give us all pause.  With the sting of Roberts’ betrayal, rest assured that the pre-game scrutiny applied to all Republican judicial short lists is now stricter than ever before.  Of course, we must first have a president on the same team.

So, while at some point your favorite presidential candidate may no longer be a contender, consider the ramifications of the next appointment to the Supreme Court.  Then multiply that by four.  This sobering thought might just persuade Americans to rally behind an imperfect, yet still more conservative candidate than the alternative.

H.L. Mencken said, “[a]s democracy is perfected, the office of President represents, more and more closely, the inner soul of the people.  On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.”  Sarcasm aside, perhaps we might instead discipline ourselves to take a longer view rather than throw away our vote for the next half-century of judges and their potentially disastrous rulings.

Meanwhile, the many conservatives who despised George W. Bush’s obvious shortcomings will still have grandchildren thankful for at least one of his Supreme Court nominations.  By contrast, try to imagine for a moment the two appointments we would have received from Al Gore.  When I look at the 2012 ballot, I do not see Mitt Romney, Ron Paul (or whoever) vs. Barack Obama.  I see Clarence Thomas vs. Elena Kagan.  My conscious does not require that my vote endorse a candidate in his utter entirety.  My vote is a strategic one—to safeguard the traditional common law protection of the individual, his property, and his freedom.  What will you do with your vote?

Matthew D. Carling is an attorney specializing in appellate law in the states of Utah and Nevada.  He has previously been a prosecutor for the District Attorney’s Office of Lincoln County, Nevada, has served as a defense attorney, and also as Judge Pro Tempore for the North Las Vegas Municipal Courts.  He received both his Juris Doctor and Master’s of Business Administration from Creighton University in Omaha, Nebraska.


Permission is hereby granted for republishing in whole or in part.  Please cite the author when doing so.

[i] McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010).
[ii] Roe v. Wade, 410 U.S. 113 (1973).
[iii] Torcaso v. Watkins, 367 U.S. 488 (1961).
[iv] Bolick, Clint, Death Grip: Loosening the Law’s Stranglehold over Economic Liberty, p. 33, Hoover Institute Press, (2011).
[v] The Slaughter-House Cases, 83 U.S. 36 (1873)
[vi] Thomas Jefferson to William C. Jarvis, 1820, Bergh, 15:277 (1903)
[vii] Thomas Jefferson to Edward Livingston, 1825, Bergh, 16:114 (1903)