Put Not Your Faith in Judges

Are there Bush judges and Obama judges? “No!” said the Chief Justice of the United States Supreme Court, John Roberts. Judges, he explained during his Senate confirmation hearings, are simply umpires, objectively attempting to follow the rules and call balls and strikes.

The chief, let us say, was not being candid. Since 1881, when Oliver Wendell Holmes, Jr., published The Common Law, it has been clear that many believe that the law is merely what the judges say it is. The law, as Holmes wrote, “at any given time pretty nearly corresponds, so far as it goes, to what is then understood to be convenient.”

Given however, that we still maintain that ours is a government of laws and not of men, how does one reconcile what Holmes wrote with what Roberts said? Worse, how does one reconcile what Roberts said at his hearings with what he has done as chief justice?

Consider first the notion that there are neither Obama judges nor Bush judges. In reality, there actually are at least two extant judicial ideologies, and they do break down along party lines. One, often called the living Constitution view, is usually employed by the four Democrat-appointed Supreme Court justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

This ideology, like Holmes’s, holds that it is the job of justices to expand the meaning of the Constitution in order to mold it to meet the current requirements of the Democrats’ policy of redress of past grievances, redistribution of wealth, and centralization of political power in the federal government. That includes protection of the asserted right to 
abortion, an attempt to exclude religion from the public square, and preferential treatment for minorities.

The other judicial ideology, usually embraced by Republicans, one famously limned by the late Justice Antonin Scalia, goes by the names of originalism and textualism. That judicial philosophy maintains that the job of a judge is the modest one of simply implementing the plain meaning of the Constitution or a statute, in order to effectuate the will of the people as expressed in the Constitution or in the statutes passed by the people’s representatives. That notion was best expressed by Alexander Hamilton in Federalist 78, where he claimed that judges were to exercise “judgment,” not “will,” and that there could be no liberty, and no self-government through popular sovereignty, if judges were to act as legislators.

Originalism and textualism have been put forward by conservatives as the only way to preserve both American liberty and the timeless truths about human nature on which the Constitution actually rests. The last Supreme Court term suggests that the Holmesians are still in the ascendant, as they have been since at least 1954, when Brown v. Board of Education was decided. The predominance of the living Constitution view may date even further back, to the famous 1937 “switch in time that saved nine,” when the Supreme Court broadly expanded the constitutional powers of the federal government in a manner desired by President Roosevelt.

The living Constitution view was evident in the most bizarre of the decisions this term, the 6-3 holding in Bostock v. Clayton County, interpreting a federal statute prohibiting discrimination on the basis of “sex” also to prohibit discrimination on the basis of “sexual orientation” or “gender identity.” The opinion was written by Trump appointee Justice Neil Gorsuch. Gorsuch had actually written a book claiming to be a textualist, though it’s unlikely Scalia would have approved of his ruling in this case. Gorsuch was joined by Roberts and the four Democrat appointees to the court.

There was a strained logic to Gorsuch’s position, spelled out roughly as follows: If one discriminates against a gay man or a transsexual because of conduct that would not be discriminated against if it were done by a person of a different sex or gender identity, then that is discrimination based on sex. This was clearly not the belief of those who passed the statute. 

“The arrogance of this argument is breathtaking,” Justice Samuel Alito wrote in his dissenting opinion, which called Gorsuch’s view of the case “preposterous.”

Gorsuch’s ruling may have inadvertently preserved some of the bastions of the old patriarchal order. Following his decision, Harvard University abandoned its years-long effort to deny certain perquisites to those who joined single-sex fraternities, sororities, or final clubs, such as the all-male Porcellian Club. Apparently, Harvard’s lawyers advised that, per Bostock, if it imposed restrictions on a man who joined an all-male organization but not a woman, it would have been impermissibly discriminating on the basis of sex, and would have risked losing federal funding.

Some were prepared to see a similar paradox in the court’s decision this term in June Medical Services LLC v. Russo. The court decided the state of Louisiana unconstitutionally infringed upon a woman’s constitutionally protected right to secure an abortion by requiring that any doctor performing one have admitting privileges at a nearby hospital, in case anything should go wrong. This, decided the court, was an “undue burden” on women, since it might result in the closure of some abortion clinics in the state.

Roberts joined in that decision with the four Democrats, creating a 5-4 majority. This occurred despite Roberts having dissented in a similar case in 2016, joining with Justices Clarence Thomas and Alito in declaring that such a measure was a quite permissible means of protecting the health of pregnant women. Roberts justified this startling about-face by saying that it was important for the Supreme Court to follow previous precedent, even if he thought that precedent was wrong.

The irony is rich, since there is no express constitutional requirement that one follow an incorrect prior ruling. This was not the first time, however, that particular rationale had been invoked; it’s been used often to support the court’s 1973 Roe v. Wade decision. Roe had found a right to terminate a pregnancy in a purported right to privacy—also nowhere found in express constitutional provisions.

One justice, Thomas, dissenting in June Medical Services, did indicate that he would overrule Roe v. Wade if he could. That decision and others following it “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” Thomas wrote. “Our abortion precedents are grievously wrong and should be overruled.”

What seemed to be happening in June Medical Services was that the chief justice was carefully maneuvering to keep the court out of the political limelight, by ensuring that there was no serious restriction imposed on abortions in an election year. Even so, Dahlia Lithwick, writing at the progressive website Slate, theorized that the chief was playing a “long game.” She focused on language in Roberts’ concurring opinion, which appeared to leave the door open for a future decision that would permit the upholding of abortion restrictions.

Later in the term, the court did temporarily let stand Indiana’s requirement that women receive the results of ultrasounds before being able to have abortions, and also let stand a parental-notice requirement for minors seeking abortions, thus suggesting that Lithwick was onto something.

There were some clear court victories this term for the Trump administration. Roberts joined Thomas, Alito, Gorsuch, and Justice Brett Kavanaugh to strike down a provision of the Dodd-Frank Act which restricted the power of the president to fire the director of the Consumer Financial Protection Bureau, in order to restore what the majority said was the constitutionally-secured power of the president to terminate presidentially-appointed officials for any reason. This frustrated the aims of Massachusetts Senator Elizabeth Warren, who had sought to make immune from presidential control the chief of the agency that she had helped to create.

The court also, by a 7-2 vote, reaffirmed the executive branch’s power to carry out expedited decisions to deport improper asylum-seekers.

But even if these modest victories were achieved, there was another action of the chief justice which seemed to be indicative of disdain for this particular president. Even though President Obama had by executive order instituted the Deferred Action for Childhood Arrivals (DACA) program, which protected many undocumented immigrants from deportation, Roberts joined the four Democrats in denying President Trump the power to cancel the DACA. This, even though Trump possesses the same executive power as did Obama.

This decision was made on the basis that the Trump administration had failed to follow some administrative requirements, even though the DACA program was itself completely illegal in that it exceeded the authority of the president.

The four conservative dissenters saw no difficulty in declaring that President Trump was acting well within his powers. Trump himself cannily observed that he still had the authority to terminate the program, and indicated that he would make sure proper procedures were followed when he chose to do so.

During the Obama administration, it often appeared as if the executive branch did not go out of its way to protect the right of religious dissenters, particularly in matters involving contraception and abortion. Religious rights finally received a boost this term, when the Court declared, in Espinoza v. Montana Department of Revenue, that if a state chose to give aid to nonsectarian private schools, it could not deny such aid to religious educators.

This was yet another 5-4 decision in which the chief justice joined Thomas, Alito, Gorsuch, and Kavanaugh. They held that the so-called Blaine Amendments were unconstitutional interferences with the First Amendment’s guarantee of the free exercise of religion. The Blaine Amendments were state measures forbidding state aid to sectarian schools, passed during a period of anti-Catholic animus in the 19th century.

Religious rights were also bolstered in two 7-2 decisions. One upheld the Trump administration’s regulations creating an exception for religious organizations to the Obama administration’s mandate that female employees be provided with contraceptives. This gave the Little Sisters of the Poor their second Supreme Court victory on this issue. The other decision affirmed the discretion of Catholic schools to supervise and fire teachers in connection with their religious teachings, free of judicial review. Roberts was in the majority in both decisions, and Ginsburg and Sotomayor dissented.

In two other 7-2 decisions with majority opinions written by Roberts, the court declared that the president’s accountants might be required to turn over his financial records to the New York prosecutor investigating purported hush money payments to porn star Stormy Daniels. However, in a separate ruling, Congress will be prevented from immediately accessing Trump’s tax returns because not enough attention had been paid to separation-of-powers issues. Justices Alito and Thomas dissented in both cases.

Both rulings were sent back to the lower courts, meaning that no resolution is likely prior to the election. Realistically, this was a victory for Trump, but also for Roberts, who preserved the court’s role and avoided injection into the election contest.

Roberts, then, is not really an adherent to originalism or the living constitution ideology. Some say he is more properly labeled an institutionalist concerned mainly with the prestige of the court and devoted to minimizing its political exposure.

This was likely what motivated Roberts’ key vote in NFIB v. Sebelius (2012) to uphold the clearly unconstitutional Obamacare medical insurance system on the dubious ground that it was a valid exercise of Congress’s taxing power, even as Roberts conceded that Congress could not have passed the measure pursuant to its power to regulate interstate commerce.  Now that the supposed Obamacare “tax,” which provided a penalty for anyone who failed to purchase health insurance, has been repealed, if Roberts is really committed to constitutional jurisprudence, presumably next term he will vote to obliterate Obamacare. 

Unless, that is, he concocts some other clever constitutional pretext to keep his beloved institution away from controversy. 

The Washington Examiner described the chief as “an empty robe.” This term did little to support Roberts’ claim of a fair and neutral judiciary-as-umpire.

The Psalmist advised, “Put not your faith in Princes,” and the Latin version, Nolite Confidere in Principibus, was the motto of a predecessor institute supporting this journal. Given the disappointment many conservatives have faced with the decisions of their Republican-nominated  justices, perhaps we should now consider a new maxim: Nolite Confidere in Iudices.