Once again, Chief Justice John Roberts has angered and frustrated conservatives by throwing his lot in with the Supreme Court’s four ultra-liberal justices in a case of paramount moral and political importance.
By casting the deciding vote in a 5–4 ruling against the state of Louisiana’s perfectly reasonable restrictions on abortion “providers” by requiring them to have admitting privileges at nearby hospitals, the chief justice has shown himself unworthy of the trust of the president and congress who appointed and confirmed him in 2005.
This is not the first time Roberts has yanked the rug out from conservatives just as they thought they had finally achieved victory in a matter of fundamental moral and social significance.
The first time came in the Obamacare decision of 2012, when he switched his vote at the last minute from nay to yay and kept the unconstitutional law alive by deciding that the so-called individual mandate was not a requirement to purchase a product but instead a tax, and thus constitutional. The sophistry behind his opinion, which was in part based on his horse-trading with the liberal bloc over the related issue of Medicaid expansion, resulted in the 5–4 vote upholding the mandate.
It was a Pyrrhic victory for Roberts, whose primary obsession is upholding the dignity of the Court even as, in the eyes of many, he’s destroying its legitimacy.
This year alone, Roberts has ambushed his fellow constitutionalists on the court in cases dealing with LGBT employment rights, and with his pettifogging notion that President Donald Trump must say “Mother may I?” to the judicial branch in order to overturn, by executive order, then-President Barack Obama’s illegal order granting paths to citizenship to alien children raised in the United States. “Arbitrary and capricious,” as the solons—led, of course, by Roberts—called Trump’s principled restoration of immigration law.
Republican Mistakes
During his tenure, President Dwight D. Eisenhower made five appointments to the Court, helping to restore some partisan balance to a body that had numbered eight Democrats and one Republican. Two of them, however, proved disastrous: Chief Justice Earl Warren and Associate Justice William Brennan.
“I have made two mistakes, and they are both sitting on the Supreme Court,” Ike reportedly said. He was particularly scathing about the ultra-liberal Warren, whom he called “the biggest damn-fool mistake I ever made.”
Republican presidents have been making the same mistake ever since. President Richard Nixon gave us midwesterners Warren Burger as chief justice and Harry Blackmun as an associate—the “Minnesota twins”—and it was their votes that put Roe v. Wade over the top.
President Gerald Ford put John Paul Stevens, another conservative who “grew” in office, on the court, while even the sainted President Ronald Reagan only batted .500 with Sandra Day O’Connor and Anthony Kennedy on the wrong side of the ledger.
Judicial ‘Independence’
Roberts, who promised at his confirmation hearings to just call “balls and strikes,” bids fair to outdo even Earl Warren in his ideological activism, however couched it may be in the language of preserving the Court’s “independence.”And therein lies the problem. For all the talk of three “co-equal” branches of government, the Constitution is quite clear on the subject: The judiciary is subordinate to the legislative and executive branches. Indeed, the only federal judicial officer mandated therein is the chief justice—and he was never meant to be the de facto king of America.
Let’s have a look at Article III, which establishes the judiciary:
Section 1. “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
In other words, aside from the chief justice, the entire federal judiciary is a creation of Congress, and can be modified or even abolished as Congress wishes. Nowhere, for example, is the number of associate justices stipulated or even required.
Section 2 enumerates the Court’s areas of original jurisdiction, which cannot be taken away from it, including the laws of the United States, treaties, ambassadors, maritime matters, and disputes among and between the federal government and the states. In other areas, the Constitution decrees appellate jurisdiction “under such regulations as the Congress shall make.”
Congress can also strip the Supreme Court of any jurisdiction other than original—as it did, by the 11th Amendment, passed in 1795, which was adopted specifically to overturn Chisholm v. Georgia, a case regarding the status of state sovereign immunity in federal courts. That amendment, in turn, was partially abrogated by the 14th Amendment of 1868.
In Marbury v. Madison (1803), the Court ruled unanimously, 4–0 (two of the six justices were ill and did not participate), and established in law the principle of judicial review mentioned in Article II, thus opening the way not only to judicial equality with the other two branches but to effective judicial supremacy.
It is the worst Supreme Court ruling in American history, and whose baleful influence is still felt today. Without it, the enormities of the pro-slavery Dred Scott decision; the racial humiliations of Plessy v. Ferguson, which enshrined Jim Crow laws, and the bloodletting of Roe, which legalized baby murder, would never have occurred.
As James Madison observed of the tripartite federal structure in “Federalist” 49: “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Madison rejected the idea that the Court’s interpretation of the Constitution should be superior to that of the other two branches.
Nonacquiesence
Throughout his presidency, Trump has had to contend not only with a Democratic Party that refuses to accept its 2016 loss at the polls, with an increasingly hostile media that has abjured its previous, if aspirational, standards of fairness and objectivity in favor of rank and rabid partisanship, with a rogue element in the GOP that works to frustrate his every endeavor, and also with a federal judiciary that believes it can countermand his executive orders by issuing nationwide injunctions—or in the case of DACA—Supreme Court decisions.From the start, Trump should have taken a page from some of his illustrious predecessors and simply defied the courts—a doctrine known as “nonacquiesence.”
Jefferson did it in 1807 with his continuance of the Embargo Act despite a Supreme Court decision against him.
Even FDR thought about defying the courts, although he eventually browbeat the Court into submission by threatening to expand its membership and pack it with liberals.
As Justice Robert H. Jackson famously observed, “The Constitution is not a suicide pact.” In other words, we cannot rationally let the perfect be the enemy of the good in human affairs.
Although the Louisiana case does not directly affect the president, Trump would serve himself and the Constitution well by denouncing it, and indeed all cases of judicial overreach. In the matter of “nationwide injunctions,” he already has a powerful ally in Justice Thomas, along with his own appointee, Justice Neil Gorsuch, who have all but begged for a precedent-setting case to come before the Supreme Court.
Gorsuch wrote in a recent decision earlier this year: “It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice.
“I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”
Had Trump adopted an adversarial but constitutionally principled stand against court decisions that were, in his judgement, unconstitutional, his presidency might not be hanging from a thread right now. The precise boundaries of the “separation of powers”—a phrase deriving from Montesquieu, not found in the Constitution—are unclear, in part by design. The Framers didn’t feel the need to spell out a remedy for every possible situation, but merely to provide a framework for doing so.
So the next time this happens, Trump should simply quote the words attributed to President Andrew Jackson in Worcester v. Georgia involving Indian sovereignty, which Jackson lost: “Justice Marshall has made his decision; now let him enforce it.”
In the meantime, so should Louisiana.
