AMAC Exclusive – By David Lewis Schaefer
In the spirit of preserving respect for the independence of the Federal judiciary, one New York Times columnist has come up with a disinterested proposal for the 67-year-old Chief Justice John Roberts, one that would make him “a hero for many”: he should resign. By so doing, editorial writer Pamela Paul explains in an opinion piece for the Times’s July 11 issue, Roberts could “help the court move towards positions that more broadly reflect the opinions of most Americans than those of an extremist faction” – that is, the 5 or 6 justices (including the Chief Justice himself in two of the cases, with his partial concurrence in the third) who recently voted to overturn Roe v. Wade, to disallow severe state handgun restrictions as violations of the Second Amendment, and also to prevent the Environmental Protection Agency from exceeding its congressionally-authorized mandate.
In both its Dobbs decision (overturning Roe) and the EPA case, the Court, far from overriding “the opinions of most Americans,” was actually returning decisions over major policy issues to the people of the states, rather than allowing unaccountable judges or bureaucrats to settle them. Nothing in either decision restricts the people of each state – or, in the EPA case, of the United States as a whole – from lobbying their elected representatives to enact whatever restrictions on abortion or CO2 emissions they think best. In the Second Amendment case, the Court, led by Justice Clarence Thomas, held that a New York law violates the Constitution by preventing “law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms,” through its severe constraint on their ability to carry concealed weapons. The decision does not prohibit the enactment of reasonable restrictions on gun acquisition such as are favored by most Americans.
Paul’s criticism of Roberts’s performance as Chief Justice exhibits a serious misunderstanding of the Court’s proper role in Constitutional and legal interpretation as it was conceived by the Constitution’s authors and widely accepted until well into the twentieth century. She cites Roberts’s testimony at his confirmation hearing, where he stated his belief that judges should not be enacting new policies on their own authority, but only “mak[ing] sure everybody plays by the rules,” along with his earlier express advocacy of the principle of judicial restraint, according to which “if it is not necessary to decide more, it is necessary not to decide more,” to suggest that the Chief Justice has violated his own principles. But this is a misrepresentation of what Roberts meant. To say that a judge’s role is to ensure that everyone plays by the same rules – that is, the Constitution, and laws enacted in accordance with it – means precisely that no law or administrative regulation which violates the Constitution, including its delegation of broad legislative authority to Congress and the President rather than unaccountable bureaucrats, should be allowed to stand. It was really the Court majority in Roe that failed to play by the rules, inventing a “right” to abortion that even serious liberal scholars acknowledged was nowhere to be found in the Constitution.
Admittedly, John Roberts has sometimes bent over backwards by comparison with his more conservative brethren in favor of “incrementalism,” that is, limiting changes to previous Constitutional decisions. As much can be seen in his joining the Dobbs majority in upholding the constitutionality of Mississippi’s law severely restricting abortion, despite its violation of the rules laid down in Roe and subsequent cases, but refusing to join their outright overturning of Roe. As in the convoluted opinion he wrote to uphold the constitutionality of the Affordable Care Act, Roberts’s wish to minimize clashes with the political branches of the government has sometimes led him to take incoherent positions. But none of that caution has saved the country, in Paul’s words, from finding “all hopes deflated” among “liberals” like her, as they witness the Roberts court making “our cherished civil liberties” disappear. Indeed, she goes so far as to maintain that the Court’s recent decisions have caused “the stench of illegitimacy” to “emanat[e]” from the Court.
While it is true that some polls have found that a majority of voters express a negative opinion of the Dobbs decision, it is noteworthy that when asked specifically in a recent Harvard-Harris survey about the limits that should be placed on abortion, such as restricting it to up to 15 weeks of pregnancy, or limiting it to cases of rape or incest, nearly three-quarters of those to whom these questions were posed, including 75 percent of women, turn out to favor policies that were illegal under Roe.
You probably won’t find this information, which comes from a July 8 editorial in the Wall Street Journal, in the Times. But the gap between the polls on which Dobbs critics rely and what voters report when the facts of such decisions are explained to them indicates, if anything, the way that political partisans in the media have been seriously misleading the public through their mode of reporting. What matters to Times editorialists who write on the Court’s decisions has nothing to do with the Constitution or the specific grounds of a decision that doesn’t go their way, but simply the policy outcome. Often dissatisfied with the outcome of the regular political process, they rest their hopes on unaccountable judges or bureaucrats to write their preferences into law.
But according to another editorialist writing in the same issue, Charles M. Blow, the American people’s situation is even more dire than Paul would have it. According to Blow, “one of our greatest errors as a country has been our nonstop campaign to convince generations of voters that elections are about freedom of choice.” While “this may be true if you are of a class not historically oppressed by the state,” specifically “white males,” a 2019 Times analysis of surveys of swing-state voters that focused on the “persuadable pool, the 15 percent of voters in the battleground states who were undecided” about voting the following year between Donald Trump and a Democrat found them to be “57 percent male and 72 percent white.” “For most other people,” Blow concludes, “’freedom of choice’ in elections is an illusion,” making them “political hostages” of the two-party system, giving them “only two choices: the benevolent captors (Democrats) or the cruel captors (Republicans).” But how does the fact that a majority of the undecideds a year before the election, were white males show that they were out to maintain mastery over minorities, rather than, perhaps, more deliberate in their choices, being less in thrall than others to identity politics or interest-group politics? And why assume that their deliberations aimed only at their own interest, rather than that of the people as a whole?
But Blow will have none of this. Although “Democrats will work for your freedom,” he laments, they will not do so “to the extent that it endangers their power,” i.e., makes them likely to lose elections. And “[t]hey have to work against Republicans, who, now more than at any other time in recent memory, seem hell-bent on establishing a new age of severe restrictions under the banner of states’ rights.” (Blow has in mind state restrictions on practices like proxy voting, or allowing ballots to be placed in ballot boxes that aren’t even closely guarded – practices that no state allowed until quite recently.)
Like Paul, Blow exhibits a common Times practice of using the first-person plural to denote the American people as a whole, or a majority of them, when what he really has in mind are the opinions of the liberals who write for, and commonly read, his paper. Hence, also like Paul, Blow expresses deep disappointment when the political process doesn’t go his way, and blames the “system” when he is in reality unhappy with the political choices made by a majority of his fellow voters and their elected representatives. Given this outlook, for Blow, should President Biden run for re-election, whatever his shortcomings, “he will be the only option” (Blow’s emphasis). “Helping to ensure his re-election becomes an act of self-preservation.”
The logic of Blow’s position is even less apparent than that of Paul’s. By his account, the mere fact that a majority of “persuadable” voters in battleground states in just one recent election were white males proves that nobody else’s votes matter. Blow also assumes that these voters were purely self-interested, and never considered the interests of women (often their own wives), racial minorities, or other groups. He offers no support to back up this assumption.
Having charged that the system in which “we” are trapped, reflecting the failure of this country to achieve what he calls “full freedom” (a term he leaves undefined), and then expressed regret at observing “political tiptoeing when there should be stomping,” Blow concludes “that politics are once again winning over the will of the people.” But he provides no evidence that a majority of the electorate shares his“will.”
Like Blow, Paul is really dissatisfied with the existence of constitutional, republican government itself. While she despairs because the Court has thrown issues like abortion or environmental policy back to the people, whose wisdom or justice she distrusts, he is convinced that to be a non-white American male is indistinguishable from being a slave. One can only wonder what sort of government that exists, or has ever existed, in the world would be more to their liking.
But perhaps we should leave the last word on these matters to a non-journalist who shares their outlook on the Court and the Constitution, the attention-seeking liberal Senator Elizabeth Warren of Massachusetts, who in a recent fundraising pitch warned that “the American people are losing confidence in the Court,” since with its “dangerous decisions on abortion rights, climate actions, gun safety and more … the Court is tossing aside settled law and saying they’re just going to substitute their own personal views and make the rest of America bend to it.” As for Dobbs, she explains, “[t]his opinion basically cites a bunch of folks from the 1700s” (those who wrote the Constitution) and says ‘Boy, that’s the way we want to go.’ To a time when aristocrats ran the world. When the only people who had voices were white men. When slavery was a way to make money.” In other words, for Warren, allowing the people’s elected representatives to determine the legality of abortion, upholding their Second Amendment rights, and demanding that Congressional statutes bind the government’s environmental policies is indeed, as Blow would have it, to reduce them to slavery.
But as the New York Post, which reported Warren’s speech, observed, her argument is “noteworthy for what she neglects to say. Never does the former Harvard law professor mention the key word in the court rulings she denounces: unconstitutional.” Neither do our most prominent politicians nor writers at America’s most prominent, ostensibly liberal newspaper, it would appear, have any regard for constitutional government – unless the Constitution itself is rewritten (as it was in Roe) to impose their policy preferences on the nation. Under this vision, just who are the masters, and who the slaves?
David Lewis Schaefer is a Professor of Political Science at College of the Holy Cross.