Unleashing the Furies

By Ramesh Ponnuru

Thursday, July 23, 2020

 

The legal commentator Josh Blackman called it the Supreme Court’s “blue June.” The Court ruled that discrimination against sexual minorities was illegal, nullified restrictions on abortion in Louisiana, and held that some of President Trump’s changes to immigration enforcement had been improperly implemented. Responses from conservatives, many of whom had previously been exulting over the supposed transformation of the federal courts by President Donald Trump and Senate majority leader Mitch McConnell, ranged from disappointment to apoplexy.

 

Conservatives were more pleased by the decisions at the term’s end. The Court said that state scholarship programs for children at private schools had to include religious schools, and okayed the Trump administration’s exemptions for employers with religious or moral objections to covering contraception or abortifacients. But that second ruling was narrow: The Court did not decide whether statutory protections for religious freedom require the exemptions, and so a Biden administration could be free to withdraw them. All in all, conservatives were left with the sense that decades of political and legal work had yielded very poor returns.

 

Much of their unhappiness has been focused on Chief Justice John Roberts, who was in the majority in each of these decisions. Roberts has been the subject of increasing Republican complaints since 2012, when he sided with the Democratic appointees on the Court to sustain Obamacare. In 2015, when conservatives advanced a lawsuit alleging that the Obama administration had extended health-care subsidies beyond the letter of the Obamacare law, Roberts voted against them again. And while he has voted with the Court’s conservatives to find that the Second Amendment protects an individual right to own guns and that this right applies against state governments, conservatives blame him for the Court’s refusal to say just what regulations are forbidden. When Justice Anthony Kennedy retired in 2018 and was replaced by Brett Kavanaugh, Roberts became the Republican-appointed justice who least enthuses conservatives.

 

Observing the conservative criticism, liberals have sometimes responded that it demonstrates the insincerity of the Right’s commitment to originalism, textualism, or other jurisprudential theories. See, they say: Conservatives are just as “results-oriented” when it comes to judging as they have long accused liberals of being. But this charge often rests on an equivocation. Judicial decision-making should not be oriented toward the advancement of certain policies on the basis of their desirability. It should seek to achieve the correct legal result. The chief justice’s critics think that in too many crucial cases, his opinions have been both mistaken on the law and unfortunate in their effects.

 

When conservatives have soured on previous Republican-appointed justices, they have tended to explain the justices’ apostasies by reference to the sociology of the legal profession, their desire for elite approbation, and their weaknesses of character. But there is widespread agreement, spanning the political spectrum, that something else is moving Roberts: that he is trying to protect the Court as an institution.

 

The Court requires public respect if it is to be effective in discharging its duties, for the same reason Alexander Hamilton wrote that it is the branch of the federal government that poses the least danger to the others: It neither holds the sword nor commands the purse. “It may truly be said to have neither force nor will, but merely judgment.” If the Court comes to be seen as a partisan political actor, Roberts worries, its judgments will lose their legitimacy. Or, at least, many observers have inferred that Roberts has this worry.

 

That worry has an objective basis. The perception that the Court is turning into an activist conservative power center in our government has been fueling a political backlash on the left. Progressives are increasingly interested in expanding the size of the Supreme Court if they win control of the White House and Congress. New Democratic appointees would make up for the “stolen seat” that they believe Merrick Garland should have taken in 2016. A new progressive majority could then overturn such hated conservative precedents as Citizens United, the 2010 decision that protected corporate political advocacy under the First Amendment.

 

Against that backdrop, the ruling in June Medical may have seemed prudent: Allowing Louisiana’s new restrictions on abortion would have angered progressives more, increasing the chance that they will act aggressively next year in a way that would reverse any gains on that front, undo other conservative precedents, and destabilize and weaken the court. “A key source of national unity and stability,” as Roberts has described the federal courts, would be diminished.

 

Hence also, perhaps, Roberts’s apparent preference for narrow rulings that command large majorities, or even unanimity, over more sweeping 5–4 rulings. While the narrow rulings may leave the law less clear, they also reinforce the public impression that the Court is interpreting the law impartially rather than imposing the partisan views of justices. It is very nearly the opposite approach of that taken by the late justice Antonin Scalia, many of whose most memorable dissents were written to persuade readers that his colleagues were not truly engaged in interpretation at all.

 

Case Western Reserve University law professor Jonathan Adler has advanced a related explanation of Roberts. He argues that an impulse to avoid disruption shapes and tempers his judicial conservatism. It’s a theory that might help to account for why Roberts allowed President Obama’s effective amnesty for many illegal immigrants to continue and, in earlier years, left his health programs in place: The alternatives would have involved dramatic changes.

 

And while the Court was bound to draw criticism however it decided those cases, criticism based on a change to the status quo would probably be more intense than criticism based on leaving it in place. During his confirmation hearings, Roberts famously promised to call “balls and strikes.” Adler points out that he also said that nobody goes to the ballpark to see the umpire. This umpire, it is fair to infer, does not want too much attention.

 

But of course an aversion to criticism is not supposed to exert an independent influence on the umpire’s calls. A strike is a strike even if he will get booed for saying so, and even if the whole game comes down to that call. In 1985, Justice William Brennan defended the Court’s liberals by saying that conservative advocacy of “judicial restraint” was “arrogance cloaked as humility.” A judicial minimalism that makes the Court’s reputation central to its deliberations is vulnerable to the same charge.

 

On one occasion, before Roberts’s tenure, the Court provided a self-conscious, extensive, and vigorous defense of the treatment of its own institutional interests as a criterion for decision. Planned Parenthood v. Casey, in 1992, also concerned a state’s legislated restrictions on abortion. The Court was widely expected to overturn Roe v. Wade. Instead it modified it while reaffirming its “essential” holding that abortion is a constitutional right. Justices have, however, cited Casey’s discussion of precedent outside the context of abortion; it is a precedent about precedent.

 

The Casey Court did not base the case for reaffirmation on the soundness of Roe as a constitutional interpretation. That interpretation is notoriously difficult to defend, as Casey’s lengthy treatment of the costs of overruling it may be taken to concede. Instead Casey’s central and most distinctive argument is that “to overrule under fire . . . would subvert the Court’s legitimacy.” It would betray all those who face “criticism or ostracism” because of their support of Roe, and even more all those who, because of their own misgivings about abortion, “struggle to accept” Roe and are “tested by following” it.

 

Overruling Roe, it continued, would not just break faith with the public. It would corrode the nation’s character. The country’s support for the rule of law, the justices explained, cannot be separated from its belief in a Court that must “speak before all others for their constitutional ideals.” The country would no longer be able to recognize itself in the mirror if the Court reversed itself.

 

To describe Casey’s argument on this point is to run the risk of being accused of caricature. The justices who made up the plurality were saying that the more the Court draws criticism, even reasonable criticism, the less it can yield; and that a refusal to yield to such criticism is a way to build a reputation for “institutional integrity.” We must keep faith with our biggest errors. The desperation of the prose suggests a certain lack of confidence in the content. But the argument is not gratuitous, and the problem of legitimacy that troubled the Court is not imaginary.

 

When the Supreme Court sets aside a law that contradicts the Constitution, its authority to do so is clear enough. If the Court must choose between the permanent will of the people, as expressed in the higher law, and the transient will of their elected representatives, as expressed in a mere statute, there is no true choice at all. That’s the basic argument Chief Justice John Marshall made in Marbury v. Madison (1803); and while it has often been described as a cunning political maneuver on his part, it is hard to gainsay. On what basis, though, can the justices deprive the people of duly enacted laws when those laws cannot plausibly be said to conflict with the Constitution? That’s the question that moved the Casey Court to talk about broken faith and lost national identity.

 

It’s the same question raised, but hardly answered, by Chief Justice Roberts’s controlling opinion in June Medical this summer. Roberts based his decision on a precedent (Whole Woman’s Health v. Hellerstedt) from 2016 that he explicitly said was mistaken. The people of Louisiana are to be denied a law that their elected representatives (in both parties) consider just and right, that is consistent with the text and original understanding of the Constitution — and that a majority of the Supreme Court recognizes to be consistent with the Constitution. Rather than resort to the grandiloquence of Casey, he justifies this denial in the name of legal stability. This stated rationale fits the legal materials poorly: His opinion in June Medical departs from the reasoning of Whole Woman’s Health, which he acknowledged at the time had misapplied Casey, which itself reworked Roe. If the foundations of your house were so stable, you’d seek better lodging.

 

If the actual rationale was the pursuit of the Court’s institutional interests, as is widely speculated, perhaps it is best that it was left unstated. But it should not be surprising that the attempt to burnish the Court’s reputation should involve its accretion of power — or that a strong doctrine of precedent in constitutional cases should lead to the Court’s exercising power in ways ever more detached from the source of that power.

 

It is also a fair question whether an effort to safeguard the Court’s prestige can succeed even on its own terms. The perception that Roberts is (and other justices may be) keenly attuned to changes in the Court’s image has exposed the Court to more outside pressure, not less. It has meant that the Roberts Court is viewed as an institution that engages in political calculation, albeit of a somewhat refined sort, rather than one that strictly follows the law.

 

Because we cannot know what might have been, it is impossible to say whether the Supreme Court would enjoy more or less respect now, whether it would be more or less the focus of partisan attention, if it had taken a different path in Casey. That we cannot know suggests that adding such considerations to a judicial task that is already difficult enough is an act of hubris.