The outcome of the recall election was Gavin Newsom 64%, Donald Trump 36%.

A similar result can be expected next year as well. Donald Trump will be the Democrats’ opponent in every race in the state, from governor to United States senator to the California Legislature — and, as a result, the Democratic Party will keep its monopoly position over all statewide offices in California and its two-thirds control of both houses of the Legislature.

This is not healthy for California — especially for Democrats. The voices of reform within that party will be silenced by the decibels of anti-Trump noise.

Many California Democrats worry that their children have to move out of state to afford a home or to find a job whose pay can keep up with state taxes and cost of living.

Many Democrats are grateful for Prop. 13 so that the taxes on their homes don’t skyrocket, jeopardizing their retirement in California.

Many Democrats want the public schools to focus on fundamentals that will train their children for quality careers, rather than a curriculum that checks off the boxes in a politically correct agenda.

Many Democrats want to be judged by the content of their character, not the color of their skin, in admission to state colleges or getting a job in state or local government.

Many Democrats want California’s roads fixed quickly, efficiently and permanently — whether or not by a union construction firm.

Many Democrats want the money we approved for water bonds to be used to build water storage as was promised.

Many Democrats see California’s windfall budget surplus squandered in one-time transfer payments to favored groups instead of replenishing the rainy-day fund to cushion the next economic downturn.

Many Democrats doubt they get the highest value for paying the highest taxes in the country.

Many Democrats care about the homeless living in unsanitary conditions along San Francisco’s Market Street and Los Angeles’ underpasses — and they care, as well, for the small businesses and law-abiding citizens whose daily life and work takes them by those encampments.

Many Democrats are concerned about the crime that causes neighborhood convenience stores to close up, raises worry about the security of their homes and causes them to look out on the street when a car alarm starts to sound.

California has been judged the most hostile of all 50 states (and even the District of Columbia!) by leaders of companies who decide where to expand and to hire people, in poll after poll over the last 20 years. Democrats care deeply about that. Without a healthy business environment, there is a shortage of good paying jobs, union and non-union.

All of these concerns will be submerged next year, as they were during the recall election.

The winning formula for the majority party, in California politics, is to ignore all of these issues because Donald Trump is such a perfect opponent. Unchallenged, the elites who run the Democratic Party will replicate the decisions they’ve made that have led us to our deep discontent. They have no reason to change because they’re winning.

As for the California Republican Party, its label is irretrievably tarnished. Elected leaders have cowered before the threat of losing in a primary. These timid souls deserve the characterization hurled at them: clones of President Trump. Against their better judgment, they have been silent or complicit in policies that have ballooned deficits, stifled international trade and withdrawn from alliances — positions that would have shocked Barry Goldwater or Ronald Reagan. The role of constructive critic has given way to uncivil, name-calling firebrand.

Grievance politics has taken over the Republican Party. Identity politics has taken over the Democratic Party. Californians need a new party, a party “for the rest of us,” the Common Sense Party. Our membership includes twice as many former Democrats as former Republicans. All who care more about solving problems than demonizing opponents are welcome to join.

Tom Campbell is a professor of law and of economics at Chapman University. He was a congressman, California state senator and finance director of California. He left the Republican Party in 2016 upon its nomination of Donald Trump. He is in the process of forming a new political party in California, the Common Sense Party.

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A couple of years after the end of World War II, a U.S. Supreme Court justice expressed concern that the court was picking and choosing which parts of the Bill of Rights would be binding on state governments and which would not.

“Some are in and some are out, but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which stay out,” wrote Justice Felix Frankfurter. “If the basis of selection is merely that those provisions of the first eight Amendments are incorporated which commend themselves to individual justices as indispensable to the dignity and happiness of a free man, we are thrown back to a merely subjective test.”

That was 1947, in a concurring opinion in the case of Adamson v. California. Adamson was appealing his murder conviction and death sentence, arguing that his Fifth Amendment right to remain silent had been violated at his trial, because state law allowed the prosecutor and judge to tell the jury that his refusal to testify might indicate guilt. By a vote of 5-4, the justices ruled against him.

“It is settled law that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action,” the majority opinion declared.

At the time, it actually was settled law that the Bill of Rights in the U.S. Constitution could be completely violated by state laws, except for the exceptions carved out by the Supreme Court. That’s what prompted Justice Frankfurter’s concern that the court’s rulings risked becoming “merely subjective.”

And here we are. In the past week or so, three U.S. Supreme Court justices have expressed concerns about the public perception that they are partisan politicians in black robes. Justice Amy Coney Barrett told an audience at the University of Louisville McConnell Center that media reports do not accurately depict “the court’s reasoning” as the basis for decisions, instead portraying the justices as “acting in a partisan manner.”

Justice Clarence Thomas, speaking at the University of Notre Dame in South Bend, Indiana, said the justices do not make decisions based on “personal preferences.” He, too, complained about the media, saying the characterization of the justices as being “like a politician” is a problem that is “going to jeopardize any faith in the legal institutions.”

Justice Stephen Breyer recently voiced similar sentiments. In an interview while on a book tour, he sought to push back against the view that the justices are “junior league” politicians.

The comments appear to be something of a campaign against proposals to increase the number of justices on the Supreme Court, as a presidential commission studies the issue. Justice Thomas warned that “we should be really, really careful” before “destroying our institutions.”

But it’s the “merely subjective test” problem identified by Justice Frankfurter in 1947 that has put the institution at risk of destruction. A close look at American legal history reveals that the U.S. Supreme Court has spent nearly the last 100 years selectively “incorporating” parts of the federal Bill of Rights into the Fourteenth Amendment, which bars any state from denying liberty to any person. This process began in the 1920s, long after the Civil War. As recently as 1900, in the case of Maxwell v. Dow, the Supreme Court said the first ten amendments to the Constitution, the Bill of Rights, “were not intended to and did not have any effect upon the powers of the respective states.” That decision was not an outlier. “This has been many times decided,” the court pointed out.

Over the decades, the justices invented subjective balancing tests with names like “strict scrutiny” and “intermediate scrutiny” to determine when and how far a state law may infringe a particular provision of the Bill of Rights. The final effect of these decisions is to place the justices in the position of creating policy.

Whatever the merits of the policies so created, this process has had an extremely distorting effect on our politics. For example, confirmation hearings for federal judges are politically contentious because they are now the last chance for Americans to have any say at all about what the law will be on many issues that once were decided by elected, accountable state representatives.

Abortion is one of those issues. In 1973, the U.S. Supreme Court decided the case of Roe v. Wade and sharply limited state power to restrict abortion. There is no constitutional amendment protecting the right to privacy, which was interpreted into existence by the Supreme Court in the 1965 case of Griswold v. Connecticut. Anything that’s interpreted into the Constitution can be interpreted out again.

That may happen. On September 1, by a vote of 5-4, the Supreme Court said it could not order a temporary halt to a Texas law that bans abortion after approximately six weeks of pregnancy. The decision was portrayed by the president, House Speaker Nancy Pelosi and nearly all media coverage as the certain death of Roe v. Wade.

When news of that September 1 ruling broke, people were voting by mail in California. It may have been a significant factor in energizing Democratic voters to turn out and defeat the recall.

Because the Supreme Court has usurped the state legislative process on so many controversial and important matters, politicians have had a free pass to go to the extreme edge of issues without worrying about building a coalition to pass legislation. This is great for fundraising and television appearances. It is also the untold story behind the deep partisan division in our country today.

Write Susan Shelley: Susan@SusanShelley.com and follow her on Twitter: @Susan_Shelley.

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