So, what’s happening with the Supreme Court? In its baker’s dozen decisions over the last month or two, the court predictably absolved religious organizations of accountability on a number of matters, but then turned around and issued rulings that were favorable to LGBT rights, Native American autonomy, DACA recipients, and reproductive freedom, sometimes thanks to a surprising swing vote or two. So how can we understand this apparent attenuation of the conservative bloc’s worst instincts? And what does this portend for the future? Inquiring minds must surely want to know, and the Toteboard is more than happy to issue an opinion, so to speak.
But first, some historical perspective.
If we do take the generous position that the structures of American government reflect a profound vision of a just and ever-perfectible union, the Supreme Court is the one component that requires the most sustained suspension of disbelief. That is to say, confidence in the court requires that government and citizens alike maintain an elaborate fiction, i.e., the pretense that the Constitution is actually a coherent, internally consistent document, that it is universally applicable to situations occurring centuries after it was written, and that those who possess the capacity for critical thinking and relevant education can dispassionately adjudicate questions of textual meaning and application. Of course, all of this is patently absurd, and regardless of whether this fiction is held out of delusion or pragmatism, one doesn’t have to scratch too deeply below the surface to see how much legal theory and judicial authority rests on a pretty fragile house of cards. Even the tradition of judicial review, which has more or less become the primary role of SCOTUS, is itself a practical, historical invention (by John Marshall in Marbury vs. Madison) rather than a genuine constitutional prerogative. The only reason why other branches of government obey the court’s decisions on constitutionality is because, well, just because they are in the habit of doing so. And because if they suddenly stopped doing so, well, that’s what we would mean by “constitutional crisis.”
Even casual observers must certainly acknowledge that this sounds an awful lot like something we usually call “religion.” You have a group of people who share an a priori presumption that a text (or body of texts) is absolutely authoritative, closed (or at least very difficult to alter), and infallible, while a delegated robe-wearing elite perpetuates the mythos of the literature’s coherence and applicability, and sits in judgment by drawing upon volumes of interpretive literature and official procedures, much of which appear arcane or inaccessible to the general populace. Of course, defenders of the faith, both judicial and theological, will maintain that their labors are all scrutable and intellectually sound, despite how often both sides of a contentious issue cite the same scripture as proof-texts for their positions. One need not look far to find ample evidence of how arbitrary or capricious this reasoning can be, like Gorsuch’s truly quirky (albeit welcome) position in the pair of decisions that affirmed gay and transgender rights. Basically, he said that if you wouldn’t fire a girl for liking boys, then you can’t fire a boy for liking boys, as that amounts to discriminatory treatment of “that person for traits or actions it would not have questioned in members of a different sex.” Certainly, the structure of the argument is logically sound (even if Alito labeled it “preposterous”), but there was nothing stopping Gorsuch from just as easily saying “if you fire a male for liking someone of his own gender, and you fire a woman for liking someone of her own gender, then that is simply treating people of both sexes the same, and therefore legal.” Fortunately, sometimes “arbitrary or capricious” lands on the side of the good, and there is some measure of relief that the court has made progress since the intellectually limited former chief justice Warren Burger characterized homosexual sex as an “infamous crime against nature.”
Perhaps as a tacit acknowledgment of the precariousness of the whole system, there are at least three built-in mechanisms that exist for the sole purpose of safeguarding at least some semblance of an independent judiciary. The first is presidential nomination. Somewhere along the line, someone must have believed that once a president is elected, he or she will operate not for personal gain or partisan advantage, but in the interest of the public good, and will therefore nominate someone worthy of the appointment. The second is senate confirmation. Well, maybe the president wants to repay a political debt or stock the bench with stooges ready to do his or her bidding, but surely the senate, likewise charged with protecting the public good, would not allow such a thing, right? Well, maybe, maybe not. The final safeguard is the most counter-intuitive one of all, i.e., lifetime appointment. The rationale is that when one has been handed the enormous power of a SCOTUS seat, free of having to sweat campaigns and contract renewals, accountable to no one other than history, he or she will summon his or her best self and fundamental human decency and strive selflessly to be worthy of the republic’s version of a “council of elders.”
So how is that working so far? Some of time, not bad. Much of the time, meh.
Certainly there have been moments when the court really tried to live up to its promise. When former president William Howard Taft became chief justice nearly a decade after being booted out of office, he made it a priority for the court to strive for unanimous decisions, in order to impress upon the public that the law was singular and that judicial rulings transcended ordinary political wrangling. And this was no easy feat for Taft, who was himself a generally anti-reform conservative sharing the bench with liberal giants like Louis Brandeis and Oliver Wendell Holmes (both of whom he came to respect). During much of the 20th century, presidents regularly consulted with the senate to make sure nominees would enjoy broad support, and up through the mid-60’s most were confirmed through voice vote. And while it might be hard to imagine now, when they started routinely calling the roll on every nomination, the collaborative vetting often produced unanimous or near-unanimous confirmation of appointees who were perceived as in the “judicial mainstream” and not carrying an overtly partisan agenda, including Thurgood Marshall, Warren Burger, Harry Blackmun, Lewis Powell, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and (believe it or not) Antonin Scalia. There really had been a time when things seemed more or less kosher with the system, as evidenced by how Richard Nixon, hardly a paragon of transcending petty partisan causes, made a point to remind Blackmun at the time of his appointment that he needed to remain independent, despite whatever political pressures he may feel.
Of course, there have been a lot of other times when the court seemed like just one more site for ideological bickering, partisan power plays, and executive overreach. The notorious “Four Horseman,” including the repellant anti-Semite James McReynolds, stood in lockstep to thwart almost every New Deal program, which prompted FDR to try to push through his own court-packing plan. Once FDR was able to start appointing his own justices, Felix Frankfurter often behaved as though he were FDR’s agent to the court, i.e., advocating the president’s position and keeping him posted on the status of internal debates, a questionable role that Abe Fortas sometimes assumed with LBJ, and Clarence Thomas seems to have assumed with Trump. And of course, several (republican) presidents have had no qualms about trying (sometimes successfully) to put unqualified bozos on the bench, from Nixon’s unreconstructed segregationists Clement Haynsworth and G. Harold Carswell, to Bush 41’s and Trump’s still unrepentant pair of sexual predators.
Which brings us to where we are today, where republicans have abandoned even the merest pretense of an independent judiciary, as they labor to manipulate the court with the same conscienceless rapacity they bring to partisan gerrymandering, voter suppression, and other abuses of power too numerous and depressing to articulate fully. It is now simply business as usual that the republicans stomp on the Constitution in their treatment of Merrick Garland, that Trump dangles court appointments in front of morally addled evangelical lemmings, and that party leaders trash “unelected judges” when they don’t get their way, as if to hold in contempt the very idea of judicial (or intellectual) independence. And you can bet your buns that if Trump loses in November and Ruth Bader Ginsburg dies two days before Biden’s inauguration, the lame-duck republican senate will shamelessly ram through another appointment before her family even begins to sit shiva.
So what happened? How did the exalted process of something as important as selecting supreme court justices transform from a relatively civilized, cooperative affair, into an ugly partisan battlefield? There are lots of places where one could point a finger, but the Toteboard places the blame squarely with Ronald Reagan, who gleefully sought to extend his conservative social and economic “revolution” to SCOTUS, beginning with his elevation of Nixon appointee William Rehnquist to chief justice, and culminating with his attempt to replace the perennial swing-vote Lewis Powell with the partisan Nixon henchman Robert Bork, a move that really would have had horrifying ramifications. The democrats fought it, the republicans resented their resistance, and the war was on . . . for the next two generations. After the senate voted Bork down, Reagan remained undaunted and tried a Bork Lite with Douglas Ginsburg, who didn’t think quickly enough on his feet to say that he didn’t inhale, before finally adopting a more conciliatory posture with Anthony Kennedy.
The funny thing is that while the SCOTUS nomination and confirmation process has ever since then given way to duplicity, political theater, and general dysfunction, the ideological configuration of the court itself has remained relatively stable for more than 30 years. With only the occasional hiccup and/or missed opportunity, the conservative wing has pretty much enjoyed a thin 5-4 majority ever since “The Cosby Show” was the top-rated program on American television. This astonishing reality has had tremendous legal and generational significance, as during this time the court has systematically expanded gun rights, enabled big business to control elections, weakened minority protections, and even handed one election to the presidential candidate they preferred. Initially, the only stopgap to prevent the right wing’s complete inversion of the Warren Court was Sandra Day O’Connor, who was clearly conservative but also boasted a certain streak of pragmatism, and made no secret of her admiration for William Taft and his aspirations for re-branding the court as a unanimous apolitical body. That is to say, O’Connor often valued consensus over conflict, and she was prone to constructing unanticipated compromises, which were then often ridiculed by Scalia as having no judicial grounding (i.e., a judicial philosophy that was no philosophy at all). Her best known middle-ground was almost certainly where she unambiguously re-affirmed Roe, while at same time taking an expansive view of abortion regulations, where the vague “undue burden” clause became the new water mark. This sort of context-specific unpredictability prompted Jeffrey Rosen to opine in a famous New York Times Magazine article that “we are all living now in Sandra Day O’Connor’s America,” as it became clear just how much power the swing-vote could wield on a court that was so consistently divided along ideological lines. And that is indeed where we all lived until she retired in 2005.
When Bush 43 tapped the reactionary Alito to replace O’Connor, Robert Siegel of NPR naturally wanted to know where Rosen thought we would all live in the post-O’Connor era. He sort of chuckled and said, “In Anthony Kennedy’s America,” invoking the court’s new center of gravity. In other words, a reliably conservative America, an America that would be haunted by the Hobby Lobby and Citizen’s United decisions, but also an America where gay people are free to marry (as long as they don’t get too demanding about where they buy their wedding cakes). Thankfully, it’s been an America at least a few clicks above “Judge Bork’s America.”
And now, a dozen years after that, with Kavanagh having replaced Kennedy, more than one court-watcher has observed that we are now all living in John Roberts’ America.
But what is John Roberts’ America? And what will it be? To a great extent, that’s the question that was posed at the beginning of this Toteboard. The question of what’s happening on the Supreme Court is more or less the question of figuring out the contours of John Roberts’ America. And of course, we don’t really know the answer to that just yet.
What? You patiently waded through all this blather about Supreme Court history, only to find that the Toteboard doesn’t really have an answer? Actually, it’s pretty fascinating that we are nearing the end of the 4th consecutive decade of a narrowly divided conservative-leaning court, where a single (albeit shifting) swing-vote has determined (and will continue to determine) so much. Only now, that vote is the chief justice, an intellectual heavyweight (though surprisingly technologically luddite) who exudes at least some measure of gravitas, who is obviously an old-school white male country-club republican with the concomitant blind spots, but who is also heck-bent on restoring public confidence in the court during a time when the whole country seems to be undergoing tremendous social and demographic transformation. He has quite a thin needle to thread.
So here are some observations about what we can expect:
Roberts is not a liberal. He may represent the ideological center of the nine justices, but make no mistake, that center is (and will be) to the right of center.
Roberts will not allow the court to be manipulated by partisan interests. Roberts wants the court to reach conservative decisions honestly, not through the winks and nods of a smug majority. There is no better example of this than his voting to strike down an abortion restriction he had supported a year earlier. He wants everyone to know (or at least he wants everyone to buy the mythos) that the court does not shift its principles simply because of the addition or subtraction of one member. He may really believe that there are no “Obama judges” or “Bush judges.” One may also wonder if he believes that baseball stars like Babe Ruth drank milk and ate apple pie, but that’s another story.
Roberts in not afraid of Trump. Roberts has shown that he will not rubber-stamp everything Trump’s justice department sends his way, and he will not go out of his way to protect Trump from stepping on his own dick. He knows that he will be writing important and influential decisions long after Trump has died or suffered permanent brain damage from syphilis.
Roberts is playing the long game. He knows that the court will change significantly on his watch, with two justices now in their 80’s and two more in their 70’s. A lot will happen over the next decade or two.
And, as the sainted Walter Cronkite used to say, that’s the way it is.