AMAC Exclusive – By Augustus Randall
Having made the appropriate denunciations and ordered a full investigation, Chief Justice John Roberts may also be viewing the first leak in the history of a Supreme Court draft opinion as an opportunity to continue his own long-term strategy of maneuvering the Court and the nation itself through what he sees as dangerous political-media controversies by delivering a surprise victory to the Court’s disaffected critics: the Democratic Party’s leadership, the corporate media, and the militant progressive left.
A DRIVEN, EVEN OBSESSED CHIEF JUSTICE?
Any abandonment of the apparent majority opinion overturning Roe v. Wade in the face of the current political-media pro-abortion pressure would, of course, raise the most serious questions about the High Court’s standing as a non-political institution, even to the point of inviting ridicule from both the right and left.
But the Chief Justice’s view of himself as a skillful strategist who, over the last two decades, has protected the Court and restored his own reputation by successfully accommodating the Democratic Party and the Court’s left-of-center critics may now cause him to feel a sense of personal urgency and anxiousness to protect what he sees as his historical legacy. Indeed, Roberts may no longer be capable of processing the extent to which such an abandonment of Justice Alito’s opinion would mean a historic humiliation for himself, the defecting justice, and for the Court itself, should he be successful—as he has been in prior cases—in peeling off one of the constitutionalist justices who may currently be in support of overturning Roe.
In understanding why Roberts may be strongly driven to change the current opinion and give the left what it wants by keeping the door open for abortion-on-demand—and keeping the Court involved in abortion disputes for years to come—a look at Roberts’ history can help. This includes a clear but rarely noticed pattern of outreach to the media — often playing favorites with Court reporters. It also includes the sudden alterations he has made to his judicial philosophy and opinions (with all the disturbing philosophical reversals and personal compromises they have meant).
In addition to considering Roberts’ nearly two-decade-long record of private and public maneuvering, some historical context can also be helpful to understand why changing the current anti-Roe majority may have risen to the level of obsession for Roberts. Roberts is not the first Chief Justice who risked coming to naught by thinking the Court’s fate and even the nation’s stability depended on his maneuvers to accommodate socially disruptive forces threatening disaffection or dissolution because of their anger at accusations they were defending a grave moral evil. Indeed, the historical ironies are compelling since Roberts may eventually find that, just like one of his predecessors, he has made himself a symptom and a symbol of a dying, compromised age; and that he did so by making the same historical miscalculation—trying to appease a power center whose inner corruption meant it could never be appeased, and yet for all its apparent militancy and strength, was about to collapse.
A NEW TANEY?
The upcoming announcement about the Alito opinion in the Dobbs abortion case is obviously going to make history, not only by deciding whether the High Court ends its absolutist ban (Casey as well as Roe) on any restraint or oversight of abortion practices by the states but also in determining whether Chief Justice John Roberts succeeds in his attempt to “Taneyize” the Court and its proceedings.
The term “Taneyize” is, of course, a reference to the 19th century Chief Justice Roger Taney, who became the historical embodiment of the view that during times of social upheaval, the High Court can render decisions that help navigate the nation through threatening political shoals and protect the Court itself from unfair criticism even if that means relegating the rule and meaning of the law to a secondary place.
A REMARKABLE INTERVIEW—2007
Roberts’ endorsement of a Taney-like standard has been far more directed and explicit than commonly thought, an endorsement that most notably began in a remarkable yet often-overlooked 2007 interview by the Chief Justice only two years after his appointment to the Court. In that interview, Roberts broke openly with his own once widely-quoted formulation on the role of judges, one he had expressed during his 2005 U.S. Senate confirmation hearing. During his testimony, Roberts had presented himself as a Supreme Court nominee who believed in distinct limits to judicial power and used an analogy that drew considerable media attention: he compared judges to baseball umpires impartially calling balls and strikes based on the rulebook of the Constitution and federal statutes.
By contrast, in the 2007 interview, the new Chief Justice expounded a much larger and far more activist — and some would say even grandiose—view of a justice’s role and his own as head of the Court. Instead of attentiveness to the Constitution and federal statutes, Roberts set up a new “judicial-temperament” template and elaborated a view of the ideal judge as one who considers “the Court’s institutional role” in society and assesses ongoing political and media controversies, and evaluates the potential harm that public criticism might do both to the Court and its image, as well as to the nation’s socio-political “stability.”
In recommending that the judge help guard against “polarize(d)” government and help arbitrate U.S. domestic “stability,” Roberts said they should be “willing to step back from your own committed view of the correct jurisprudential approach” and be open to adjusting decisions so that the Court acquires “legitimacy, credibility” and avoids appearing to have a “partisan divide.“ By “worrying about the effect on the Court as an institution” and being responsive to what Roberts terms “fluidity in the middle” and a “shared commitment to unanimity,” a judge can make those outside the Court see how they benefit from “unanimity” and thus make decisions that, in taking into account outside concerns and criticisms, display a judicial balance and temperament.
In a particularly telling formulation, the Chief Justice also said that the judge’s focus should not really be “the correct jurisprudential approach” and seemed to relegate that concern more—and this was a striking turn by Roberts—to the role of a “law professor.” In Roberts’ direct view, then, a judge should demonstrate judicial temperament not so much with the “consistency and coherency” of “an individual record” but by taking into account larger social and political forces.
So that the reader can see this description of Roberts’ views is neither distorted nor exaggerated, the sections from which the quotes are taken can be found in this article. Similarly, a further bit of assurance can be had in seeing the interviewer’s own conclusion that Roberts’ meaning was that a judge should “suppress his or her ideological agenda in the interest of achieving consensus and stability.”
The fact that Roberts’ own unusual turns of phrase (“fluidity in the middle,” “shared commitment to unanimity”) did not exactly display perfect syntactical pitch and lacked clarity or—to use the Chief Justice’s own unusual word, “coherency”—was indicative of the difficulty of the task Roberts had set out for himself in the interview. Hence, some syntactical shakiness or awkwardness of expression was to be expected, as Chief Justice Roberts tried to reconcile his current views with those expressed two years earlier by Supreme Court nominee John Roberts. Clearly, the testimony of the “umpire”-minded nominee Roberts had made clear that considerations such as avoiding “polarization” or maintaining “stability” were not the domain of the judge. In this earlier view, embracing concepts like “fluidity in the middle” and taking into account the ever-shifting winds of political and media trends should be seen as irrelevant or extraneous to the calling of constitutional and statutory balls and strikes. In fact, the perspective of the new Roberts was one the old Roberts would clearly have considered a warrant for a kind of limitless judicial activism that greatly endangered the Court’s task of preserving the law and American constitutional tradition.
If then, in his 2007 interview, the new Roberts deployed some vague or ill-defined terms as verbal parachutes, giving him a way out of accusations he was making irrational or injudicious reversals of his prior beliefs, he was—in trying to reconcile the irreconcilable—obviously willing to risk lack of clarity in order to accomplish what he saw as a far more urgent and pressing need: using the media to address a political-news environment that since his accession to the Chief Justice’s chair had turned sharply negative.
ROBERTS AND THE BACKLASH
At the time of that interview, Roberts was facing a huge backlash from powerful political and media forces who saw his “umpire” pledge as a critical threat to their interests. Acutely aware that the new Chief Justice’s vow to play by the legal rulebook might force them to end their own deep dependency on a Supreme Court that, over more than six decades, had established an extraordinary record of advancing left-of-center political goals that could never have gained approval at the ballot box or in a congressional vote, the leadership of the Democratic Party, their increasingly close media allies, and the militant left had an existential fear that a High Court was being formed that no longer served as their legislate-from-the-bench surrogate.
Moreover, these fears intensified daily with the approach of the 2008 presidential election and the possibility that a dutiful Supreme Court would check or thwart the ambitious but constitutionally questionable agenda of any new Democratic administration.
The result was a mounting series of attacks on Roberts himself and what was suddenly being called “The Roberts Court.” As a largely private lawyer, Roberts had no prior experience in being at the center of such public criticism, let alone political-media attacks that were moving from discomforting to openly hostile and even angry. Though considered affable and smart, he also had a reputation for being thin-skinned about personal criticism as well as being disdainful of the media – even to the point of suggesting the Supreme Court was in error with its New York Times v. Sullivan decision upholding broad Frist Amendment freedom.
But rather than ignore or try to find a way to counter the building criticism, Roberts decided to send some clear signals of accommodation to those behind the attacks on himself and the “Roberts Court” and use the media to do it. In retrospect, however, Roberts can also be seen as using his media moment as an early set-up for the rationale behind his even more consequential and historic outreach to critics on the left. Over the next few years, his “judicial temperament” rubric would lead him to ally himself with the Court’s liberal justices and cast the deciding vote in high-profile 5-4 decisions that astonished many Court observers and constitutionalist-minded scholars as he issued opinions that accommodated himself to what the “umpire” Roberts would have considered manifest violations of constitutional and federal statutory text and intent.
ROBERTS’ DILEMMA OF PUBLIC ACCOUNTABILITY. FOLLOW-UP QUESTIONS ON THE ETHICS OF HIS OUTREACH TO THE MEDIA. (DECEIT? COWARDICE?)
Roberts’ sudden descent from the Olympian chair of the Chief Justice into a not-very-judicious foray into the political-media arena to announce his judicial volte face meant he had presented himself with a dilemma—the dilemma of public accountability, public accountability that any appointed official should face if he or she openly uses the media to stake out radically new ground from the terms of his or her initial appointment.
“LUCY, YOU GOT SOME ‘SPLAINING TO DO”
Having announced himself a justice in the Taney tradition who could see larger issues like national “stability” (in an interview he had so clearly choreographed), Roberts had a public duty to permit follow-up questions, including indelicate ones, about the ethics of his sudden transformation and his response to his critics’ accusations of deceit or cowardice. The Chief Justice had “some ‘splaining to do,” as Ricky Ricardo famously said to his addled-minded spouse, Lucille Ball.
Young D.C. lawyer John Roberts had, after all, received the nomination of a U.S. president, the approval of the U.S. Senate, and the support of tens of millions of Americans because of views he stated in his public testimony that would never have relegated “consistency and coherency” of a judge’s “individual record” to largely the domain of a “law professor.” Roberts had held himself out as someone who believed Constitutional perspective and consistency was a central consideration for any a sitting jurist.
Indeed, Roberts had ridden to the Chief Justice’s chair on a wave of weariness with a federal judiciary that had either refused to halt federal seizures of power or had imposed its own culture-war beliefs and policy views on the public. The High Court, in particular, was frequently criticized for implicitly endorsing the right of five unelected lawyers to abrogate the rights of Americans to decide for themselves questions fundamental to a civil society’s self-definition as well as their rights to constitutional protections against the tendency of the central government to abuse power by pushing aside other domains of government and subordinating the protected rights of private institutions and individuals.
ROBERTS FINALLY ADDRESSES UNANSWERED QUESTIONS VIA CBS NEWS IN 2012
After the boldness of his 2007 interview, Roberts was to leave conspicuously unanswered questions about his sudden signaling of a stance that was light years away from his onetime view of judges as neutral judicial umpires. Only eventually (in fact, six years later) would he use the media again—this time CBS News in a 2012 story that carried his obvious sanction—to deal at least indirectly with the issue of public accountability and some of the critical or obvious follow-up questions to his shift of philosophy and perspective. Surprisingly, the article would actually make direct reference to Roberts’ “alliance with liberals” and admit to his “sensitivity” about “damage to his reputation” and the extent to which he monitors media coverage. It would even deal with the very issue of “deceit” (or cowardice) some of his critics had raised.
The article would also explore or at least touch on another unanswered question from 2007: exactly who the outsiders were that Roberts implied would approve of the “need for unanimity” and, of course, the ever-important “fluidity in the middle.”
Beginning with Roberts’ first major reversal of his judicial philosophy (and the first of his critical 5-4 decisions in “outreach to the left”), the CBS article cited his vote on the constitutionality of Obamacare:
Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Then the article discussed at length Roberts’ attention to the media and his own role as Chief Justice:
Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public. There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld. Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings when he explained a philosophy of judicial restraint. It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, ‘wobbly,’ the sources said.
ROBERTS, OBAMACARE, AND SCALIA
Thus, as the article made clear, Roberts was seeing the Obamacare decision as a full realization of his judicial temperament template in reacting to external forces, which is why the discussion of coverage of the Court’s Obamacare decision was clearly important to Roberts.
Sensing how some would see his opinion as a reversal of his stated beliefs and philosophy, the Chief Justice clearly felt a need to explain his decision to change his vote and his apparent abandonment of the judicial outlook and principles that had led to his appointment. Accordingly, he took the unusual step of reading aloud his opinion from the chief justice’s chair, an opinion that featured an elaborate and even homiletic-sounding justification as to why the Court must not stand in the way of the political choices of the people.
Roberts’ opinion led to searing critiques from constitutional scholars and some eviscerating Wall Street Journal editorials (which Roberts reportedly resented and felt stung by) that all focused on the contrivance Roberts had to go through to justify the law as a function of the taxing powers (even though the administration had abandoned that line of argument). Much was also made of a law Roberts almost seemed to be hailing as the people’s choice. Obamacare was widely unpopular, had no bipartisan support, and, in addition to a Republican takeover of a Massachusetts U.S. Senate seat formerly held by Edward Kennedy, would shortly result in a historic 63-seat win for the GOP in the 2010 House elections. Finally, Roberts’ critics noted that his willingness to go along with Obamacare’s constitutional workarounds and illegitimate federal seizure of one-sixth of the U.S. economy was based on a plan whose origins were in an outdated statist mindset. The law resorted to a command-and-control or central-planning model of governing that used sweeping personal mandates to centralize health care decisions and delivery by placing them in the hands of newly created, federal D.C. -based bureaucracies that would make “the system” more “economical” and more “rational.”
Perhaps the most telling of all the critiques of Roberts, however, was that of Associate Justice Antonin Scalia, or, more exactly, the look on the face of Scalia as he watched Roberts read his opinion—a look reflecting the disdain and perhaps even the contempt of an older man for a younger one whose judgment has been distorted and perhaps even corrupted by the sudden feeling of power.
The pattern seen with Roberts’ first pro-Obamacare vote repeated itself as the Court, in saving the law in a second 2015 case, made itself and its Chief Justice again easy fodder for critics, some of whom were not shy at implying that Roberts seemed to be putting hope of disarming the Courts’ media and political critics above his duty to interpret the Constitution and follow the rule of law.
On this opinion too, Justice Scalia provided perhaps the most telling and memorable moment. And while in the history of the Supreme Court, some dissents are remembered as particularly effective and even devastating, Scalia’s may end up being considered a sort of legal epitaph for Roberts’ reputation and legacy. After cataloging the majority opinion’s contrivances and inventions—“somersaults,” as he put it—Scalia also pointed out that the majority had not just saved Obamacare but come up with a new and vastly expanded federal program. (Possibly, this was part of Roberts’ zeal for doing the people’s will?) Obamacare, Scalia said, should now be renamed “SCOTUScare.”
Despite Roberts’ Obamacare votes and opinions, however, these huge victories for the left did little to slow attacks on the Court in the form of assaults on conservative justices or nominees or with various schemes to add liberal justices and “pack” the Court into constitutional oblivion.
ROBERTS—THE IMAGE REMAKE. “HERO” OF THE LEFT.
Not so surprisingly, Roberts’ maneuvers did eventually transform his own image. There is no better testimony to that transformation than the numerous Google entries from left-of-center news sources that, in noting his Obamacare decisions and others, associated the name of the once-despised Roberts with the word “hero”:
“John Roberts, Moderate Hero?” – The Atlantic
“John Roberts, liberal hero: How the chief justice destroyed the conservative case against ObamaCare” – The Week
“John Roberts, liberal hero” – Bloomberg
“The Political Genius of John Roberts” – Slate
“John Roberts Is Just Who the Supreme Court Needed” – The Atlantic
Many other encomiums can be found as well:
“In Saving Obamacare, John Roberts Has Reframed His Legacy.” – U.S. News and World Report
“To his everlasting credit, and the credit of the critical institution he leads, the Chief Justice played it straight in today’s ruling” –Obama advisor David Axelrod.
So too, Law Review articles celebrated Roberts as a shrewd and historic legal strategist.
THE FORGOTTEN LEAD-UP TO ROBERTS’ CHANGE ON OBAMACARE.
While immediate political-media pressure leading up to Roberts’ various Obamacare votes was critically important, that pressure also had a larger context—a planned campaign of criticism and open attacks on the Court even before the Obamacare cases. One of the early crescendos of this anti-“Roberts Court” campaign was orchestrated by President Obama himself. In an unprecedented move—with the Court’s members seated before him in the House chamber—Obama used his 2010 State of the Union address to attack them for a recent decision Democrats had intensely disliked for threatening their monopoly on corporate campaign money. With Citizens United, the Court had afforded conservative organizations the same rights as unions, media organizations, and other pro-Democratic Party groups. In criticizing the Court, Obama made an extraordinary claim: “The Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”
While the Obama attack was a never-before-seen transgression against the principle of separation-of-powers and a startling enough intrusion on the State of the Union as a moment of national unity, perhaps the most salient fact about the incident—one that did not elude Roberts as well as other establishment Republicans—was the general reaction. A media that would have roasted any Republican president for making a similar constitutional affront not only gave President Obama a pass but even managed to sound approving, as in the New York Times headline: “In Front of the Nation, Rare Rebuke for Court.”
Most of all, though, the media declined to report on the most glaringly newsworthy aspect of Obama’s attack on the Court.
It wasn’t true.
Obama’s charge was a falsehood—a boldly stated falsehood—but still a falsehood. And a falsehood dramatically highlighted the very night of Obama’s address as Justice Samuel Alito said aloud, “That isn’t true,” as cameras swung to his face.
Alito was right. The Court’s decision did not do as Obama said—there was no such legalization of foreign contributions, in its opinion.
But the work was done—Obama had put the Court on notice of what he, his advisers, the Democratic Party leadership, and the left were willing to do in a sort of rule-or-ruin mentality that discarded constitutional precedent and directly targeted the Supreme Court and its justices.
IN THE “RULE OR RUIN” ATTACKS ON THE COURT, ROBERTS READ THE EARLY SIGNALS OF A NEW MEDIA ERA.
The background to Roberts’ Obamacare decisions, then, and President Obama’s unprecedented attacks on the Court (as well as an attack prior to the second Obamacare case by the Chairman of Senate Judiciary, Patrick Leahy), show not only a disregard for constitutional principles like the separation of powers but perhaps an even more significant change. The media that not only declined to report on this development but—about to move into full partnership with the Democratic Party and the American left—would actually collude in many attacks on conservative justices or Court nominees and give favorable coverage to schemes to pack the Court with new liberal justices.
In the media’s decision not to do any real follow-up and hold Obama to account on his State of the Union falsehood was an indication of the major shift in a once-robust ethos of American journalism that once held accountable incumbent administrations of whatever party. While in the pre-Obama era, major news organizations always had a heavily biased newsroom culture, they still showed themselves capable of occasionally indulging in the luxury of holding even Democratic presidents and their administrations accountable for attempting political smears and even lying or, at least, conspicuous lying. For example, the media covered and even pursued various Carter administration scandals and Jimmy Carter’s false claim in the 1980 presidential campaign that Reagan was playing the racist card. (So severe was the media reaction, including a searing Washington Post editorial, Carter had to go on TV and apologize.) So, too, to some extent, the media covered the non-stop ethics imbroglios of the Clinton administration, from Whitewater to the White House Travel Office to Monica Lewinsky.
The Obama era, however, was to see a full abandonment of this journalistic ethos and practice as Obama and his administration were exempted from accountability in even egregious and historically notable cases of deceiving the public. Indeed, beyond the Obama falsehood in his State of the Union address, two such instances of media cover-up on behalf of the Democratic administration would amount to unprecedented episodes in the history of American journalism since they were so ethically objectionable that they caused two highly respected reporters—Lisa Meyers at NBC and Cheryl Attkisson at CBS—to depart their news organizations.
In the first case, Lisa Meyers, an NBC lead investigative reporter who had a long record of giving a journalistic hard time to politicians on both sides of the aisle, had found evidence that not only was the administration lying about its health care “reform” but was well aware of its own mendacity. On as many as 38 instances, Obama had with virtual media-impunity assured Americans that under his federal takeover of health care they would be able to keep their current doctor, their current insurance plan and provider, and save $2,500 on yearly costs. In Congressional hearings and documents, Meyers found evidence that the administration actually knew it was misleading Americans, but when she found her network was unwilling to give her revelations any air time, she posted the story on her own Facebook page and departed NBC.
The second case was an even more serious incident since it involved the boldest falsehood ever told to the American people in a national security crisis—worse even than Johnson’s misrepresentation of the 1964 Gulf of Tonkin incident with North Vietnam. After the September 11, 2012 attack on the Benghazi consulate that had left four Americans dead, the media defended President Obama, Secretary of State Hilary Clinton, and National Security Adviser Susan Rice as they chose to systematically lie to the nation with the false claim that the attack was a spontaneous reaction to an inflammatory video made by an American rather than the organized terrorist attack the administration knew it to be from its own intelligence briefings and emails. Major media organizations then also did repeated stories accusing Republicans of trying to exploit a national security crisis for political purposes in the midst of an election campaign. In attempting to expose this wrongdoing, CBS’s Attkisson did several follow-up stories but the network’s refusal to permit her to fully cover the story or to stand behind her when she faced administration harassment led her to resign and write a chilling book, Stonewalled.
Thus, Obama’s status as the first president fully exempted from accountability for a habit of boldly-stated falsehoods was a signal of what was to come. The media not only covered up wrongdoing by public officials it favored, but — in a model introduced and perfected by MSNBC’s Jonathan Griffin and CNN’s Jeffrey Zucker (friends and members of each other’s wedding parties) – also began working closely with Democratic Party operatives to routinely defame up-and-coming candidates or activists on the right, particularly conservative women. Both outlets also routinely accused the Republican Party of racism (so much so that an angry RNC Chairman Reince Priebus refused to authorize a 2016 debate for NBC) as well as later accusations of collusion with foreign governments.
What was coming then was the dominance of news executives like Zucker and Griffin, who had political agendas but no day-to-day reporting experience—the very sort of “suits in the suites” who in an earlier time were laughed out of newsrooms when they attempted to interfere with the coverage or the work of real journalists. Thus, in an angle often missed by conservatives, the real trouble with the media was not reporters, but the executives who started pushing out professionals like Lisa Meyers and Cheryl Atkinson and replaced them with those willing to subordinate the ethical traditions of American journalism to the political agendas of bosses who signed the contracts and decided salaries. Increasingly too, media organizations came to favor far less experienced but politically “woke” reporters whose college experience had schooled them in militant ideology but left them cultural and historical illiterates. Accordingly, the newsrooms of famous media organizations would come to resemble left-wing communes where those who failed in their stories to observe the liturgies and doxologies of the left were subjected to votes of disapproval and even purges. Added to that was the takeover of major media organizations and magazines by billionaires who were anxious for the insulation from criticism that only ownership of a major outlet can provide. They were the very sort of commercial-minded types that the Sulzbergers of the New York Times and the Grahams of the Washington Post had never permitted near their newspapers but whose ownership would in a new era of “checkbook journalism” lower the standards and professionalism of some of America’s greatest journalistic institutions.
Thus, if John Roberts as early as 2007 sensed in the criticism of the “Roberts Court,” or, for that matter, the unhinged attacks on the president who had appointed him, George W. Bush, that the media was beginning not only to side openly with the Democrats and the left but was also about to join in an open season on conservative officeholders, his feelings of intimidation are understandable. Seeing signs that the most corrupt era in the history of modern American journalism was on its way, Roberts surely found no signal more indicative of the media’s willingness to serve the causes of the left than the fact that by 2008, it was taking up the cudgel of the Democratic Party and the new Democratic president against the Supreme Court.
But, again, the salient point is that in the years ahead, no attempt by Roberts to mollify the left in slowing their attack on a Court that was anything less than reliably left-of-center was to prove successful. Thus, the media proved enthusiastic allies to an extremely well-paid and well-financed group of professionals—lawyer-left types—who were always waging a campaign of relentless attacks on conservative Justice Clarence Thomas and, most notably, orchestrated a smear of Court nominee Brett Kavanaugh with charges so clearly fabricated that an earlier generation of even liberal reporters would have quickly dismissed them as not credible or, indeed, blown them apart. Likewise, much of the media proved an apt cheerleader for and treated with the deepest sympathy the left’s and Democratic Party’s leaders various schemes to pack the Court.
DEMOCRATS GET THE IDEA. WITH A CHIEF JUSTICE WHO “PAYS ATTENTION TO MEDIA COVERAGE” AND VALUES “FLUIDITY IN THE MIDDLE” THREATS WORK. SCHUMER’S PRECEDENT-SHATTERING ATTACK ON THE COURT AND ANOTHER ROBERTS SWITCH.
In a moment inconceivable in any earlier Washington era when the idea of a separation of powers was respected, a U.S. Senate Majority Leader took to the steps of the Supreme Court and politically threatened justices by name.
Not since New York Senator Chuck Schumer had wept publicly over Donald Trump‘s travel ban had he seemed quite so unhinged as he came close to screaming: “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
What followed had become part of a standing pattern. Roberts made a tepid response to the threats of “You-won’t-know-what-hit-you” by the Senate Majority Leader (the Chief Justice was consistently sharper with Republican critics of the Court) but beyond his muted reply, he delivered what Schumer most wanted. Rewarding his ominous threats and bullying.
In the Louisiana abortion case, Roberts cast the deciding vote to strike down the law in a 5-4 decision. In a concurring opinion, even though Roberts openly disagreed with the liberal majority’s reasoning that essentially ruled out restrictions on abortion, he went out of his way to let the Roe precedent, which he saw to be incorrect, remain in place. Justice Gorsuch backhandedly criticized Roberts: “To arrive at today’s result, rules must be brushed aside and shortcuts taken.” So too, did Justice Alito. But Roberts had in using the specious argument that Supreme Court precedent is somehow sacrosanct delivered the victory Schumer had so threateningly demanded.
FACING CHARGES OF A “TRUMP COURT” ROBERTS PULLS OVER NEWLY APPOINTED JUSTICES IN TWO KEY CASES SHATTERING CONSTITUTIONAL PRECEDENT.
With the 2020 election and its controversial aftermath, however, came a new spate of media criticism as Roberts faced a possibility that probably terrified him—two cases involving President Trump that might mean the media could transform his Court into the “Trump Court” if three new justices that Trump had appointed sided with the president’s lawyers.
Working hard to corral the new justices into his Taney-like view of the Court, Roberts’ efforts resulted in the justices—who had established careers and written opinions that saw judicial activism as a threat to the constitutional order and the democratic process—joining him in historic decisions as activist as any in history and, indeed, revolutionary in overthrowing precedent.
In the first case, Roberts and the new justices declined to join Justices Alito and Thomas and even hear arguments of the various cases in which 18 state attorneys general alleged grave irregularities in the 2020 election. The Roberts majority of the Court refused to follow Justices Alito and Thomas and even to consider the argument—no doubt colored by possible charges it was trying to favor Trump. This decision will probably face much historical disapproval and even condemnation given the on-going revelations suggesting the 2020 election was potentially the most corrupt in history.
The second case was even more revolutionary, as the Court—again seeking to appear not to side with Trump—arguably abrogated the entire legal tradition of executive privilege as well as First Amendment protections for the media in the decision Trump v. Thompson, which essentially means any congressional committee now has near-contemporary access to communications of the executive branch either with the president, their superiors, or the media.
ROBERTS’ 2022 STATE OF THE UNION MOMENT WITH A HOPEFUL SENATOR GILLIBRAND. CAN THE CHIEF JUSTICE DELIVER ONE MORE VICTORY FOR THE DEMOCRATS, THE MEDIA, THE LEFT AND FOR ROBERTS HIMSELF?
The apex of Roberts’ transformation came in rather spectacular form this year just prior to Biden’s State of the Union address. Senator Kirsten Gillibrand, who though always liberal had moved radically leftward in making a 2020 presidential run, sought out Roberts on the floor of the House Chamber and told him he was the
“…only hope that women in America have.”
“[Your] role in history is very important to the future of America.”
Observers say Roberts remained cordial and—perhaps because he preferred the Gillibrand carrot to the Schumer stick—may even have looked pleased by the encounter and the praise from the Democratic senator.
THE DOBBS CASE—THE CHALLENGE ROBERTS FACES IN UNDERMINING THE ALITO OPINION
However successful Roberts may have been in corralling the new Trump-appointed justices to join him into suspending, at least temporarily, their judicial philosophy for the sake of trying to temper allegations of a “Trump Court,” in changing the Alito opinion in the Dobbs case, Roberts faces a new challenge. From the tenor of oral arguments before the Court, this is not necessarily one he will win.
Roberts’ objective here is clear. By every available indication, he will seek to forge what he thinks of as a middle-ground majority that will uphold Mississippi’s pro-life law but refuse to revisit or overrule the controversial Roe and Casey precedents. Yet, in his pursuit of this goal, Roberts will have to try to use the current controversy over the leaked opinion to buttress his claims that the Court should not directly overturn the prior decisions.
During December’s oral arguments, each of the five other Republican-appointed justices, including each of President Trump’s appointees, signaled they were prepared to broadly reexamine the Supreme Court’s prior absolutism on abortion –indicating the Court might already have the five votes needed to overturn Roe and its judicial offspring Casey regardless of how Roberts decides to vote. Furthermore, as constitutional scholar Robert George wrote for First Things magazine, a Roberts-inspired middle-ground approach simply “isn’t possible” because “there is no honest reading of Casey under which the Mississippi law would stand.”
In trying to spare both himself and the Court from political criticism, then, the Chief Justice is not only setting himself up to become the most political member of the Court, but he is also doing more than even the most outspokenly progressive justices to cement the Court’s status as a political—rather than a legal—institution in the eyes of the American public. Though Roberts fails to see it, the damage here to the Court can be lasting.
Moreover, the Roe ban on abortion restraint has with the passage of time looked not only anti-scientific but even incoherent. The fundamental “viability” question is fortified by science but also the simple evolution of thought and the growing realization of the absurdity of the abortion-on-demand movement. The fact is that under the pro-abortion rubric, a doctor who ends a baby’s life while it is still in the womb by penetrating its head with scissors is performing a legal, late-term abortion, but should he do that same thing to a baby a few minutes later while it is on a warming table in a delivery room, he can be arrested for murder.
A brief trip then through a mother’s birth canal is the determinant of viability?
Simply put, with the passage of years, Roe’s ruling that unborn children are not “persons” under the Fourteenth Amendment, entitled to due process of law before they are killed, seems manifestly at odds with science, morality, and just common sense.
CAN ROBERTS GET BARRETT, GORSUCH OR KAVANAUGH TO PULL AN ANTHONY KENNEDY?
In 1992, a relatively new Supreme Court Justice, Anthony Kennedy, would surprise the president who nominated him as well as the U.S. Senators who voted for his confirmation when he suddenly switched his vote to join with the liberals on a case (Casey) that would solidify Roe’s absolutist ban on restraint of abortion practices.
Although some conservatives at the time saw Kennedy’s vote as just a temporary lapse in a Supreme Court tenure that would reflect a sound constitutionalist outlook, the Casey decision was actually a harbinger. Kennedy would follow with other decisions that disillusioned conservatives would see as his attempt (in a manner similar to Roberts’ outreach to the left years later) to live down the media’s dismissal of him when he was first appointed as “the conservative Catholic from California”—“the three Cs.” Kennedy would continue his liberal decisions and, in seeking to remake his triple-“C” image, transformed himself into just the sort of Justice who was invited to address the American Bar Association meetings and who accepted law clerks from far-left-of-center Harvard professor Laurence Tribe. One conservative who sometimes talked to Kennedy in his early years on the Court said about his metamorphosis: “He ended up a social climber, not a jurist. He cared about acceptance in Washington society.”
Clearly, that criticism of Kennedy is now made of Roberts and any number of other judges in the age of corporate media. In fact, a predecessor to both Roberts and Kennedy, Justice Harry Blackmun, portrayed by the media as the lesser part of the so-called “Minnesota twins” (with the larger role played by fellow-Minnesotan Chief Justice Warren Burger), let his unhappiness with this coverage play no small part in seeking the dubious distinction of writing Roe and having his name permanently associated with a decision that made the startling discovery of abortion rights in the U.S. Constitution.
Thus, conservatives see Roberts as part of a long-term trend in which justices with seemingly legitimate bona fides fall prey to the rarefied existence provided by a Supreme Court appointment. The lifetime tenure and a culture of round-the-clock deference can reinforce all the usual human vanities and just as quickly corrode a sense of reality through a lifestyle that, even if more quietly demonstrated, is still comparable to a career as a star NFL wide receiver or the Johnny Depp-Amber-Heard existence of a Hollywood celebrity. For conservatives, a Supreme Court appointment has increasingly come to be seen as an occasion of sin; the temptation seems nearly irresistible for a new justice to flip from the conservative to liberal side and then sit back and enjoy the pleasure of their family and social set at seeing their favorite justice finally recognized as the “hero” that they know him or her to be.
Obviously, any Roberts attempt to play the media card with those who are part of the Alito opinion is no longer quite so easy since the temptation to media accolades is greatly lessened by the collapse of the media’s credibility and the corruption of American journalism.
Just as important, new Justices Gorsuch, Barrett, and Kavanaugh, unlike Roberts or Kennedy, have established records of service on the bench. And however much Roberts may have sought to use the drama of the moment to prevail upon them in the “Trump Court” cases, their long-term records feature written opinions showing a strength of mind that goes beyond just careful reasoning and suggests a maturity about the role of the judge that is capable of resisting the allure of praise or social acceptability.
Even more important, the three new justices themselves have mentioned the utter irrationality of continuing to use the Supreme Court docket as a substitute for legislatures and elections to decide matters like the definition of life that the people themselves should determine through their democratic institutions.
Thus Roberts is facing no small challenge in seeking company for his own opinion in the Dobbs case, and one that someday—for the sake of his own historical reputation—he may even be glad he lost.
LIKE TANEY BEFORE HIM, ROBERTS HAS MISCALCULATED HISTORY.
The fact remains that Roberts seems unlikely to reject his own recent past. Having again disappointed conservatives last year when even on an abortion case (Louisiana) he sided with liberals on the grounds of stare decisis (not overturning Court precedent), Roberts has in a similar fashion apparently declined to join in an Alito opinion that dislodges Roe. Thus, Roberts has no choice but to look to try to peel off one justice as a partner in arguing that overturning Roe is unnecessary.
Roberts, of course, sees declining to overturn precedents as validation of his long-term strategy to protect the Court’s reputation and image, and here his commitment seems unshakable. As one former associate who saw him not long ago put it: “John is very much into the ‘Mr. Chief Justice’ mode and is not coming back. He’s the football coach determined to prove his ‘prevent defense’ is going to work no matter how many times the opponent scores and even if it means losing the game.”
In this case, “the game” is the credibility and perhaps the survival of the Supreme Court in its present form, a Court Roberts sees threatened only by those he has tried to accommodate: the Democratic Party, the media, and the militant left, entities that in the end can never really be accommodated.
And yet, there exists a possibility that Roberts seems incapable of processing: history is not moving in the left’s direction. He seems oblivious to the idea that times have changed, that the Democratic Party has imploded into extremism causing serious defections among minorities and working people, and that the media has similarly cratered its own credibility. Thus, Roberts is missing the real danger to the Court: his own position on the Dobbs case, and the sort of damage he would cause with those he has long taken for granted if he were to succeed in overturning the Alito majority.
The political consultants call them “the normies”—normal Americans who, while they may not keep a close eye on the Court’s media coverage (unlike the Chief Justice), do have a deep sense of the Court’s role in American constitutional history as one that is supposed to be above the tumult of quotidian politics and media controversies. It is these “normies”—aware of the current controversy and protests in front of justices’ houses—who would now interpret a collapse of the Alito majority as rewarding the illicit leak of the draft opinion and the pressure tactics of the left. The Court would be permanently diminished in the eyes of these normal Americans.
Likewise, Roberts’ ongoing play to media power at the moment of the media’s collapse also risks permanently alienating the one group the Supreme Court really does need—conservatives. In the past, frustration with the Court among conservative officeholders, activists, and polemicists has boiled over into occasional demands for term limits or restrictions on the Court’s jurisdiction. Generally, however, conservatives (despite all their disappointments) have attempted to protect the Court from demands for its constitutional overhaul.
Thus, the issue of conservative disaffection with the nature of a Supreme Court appointment is again worth raising: how long would conservative support last if the apparent Alito majority is now replaced? Clearly, a breaking point might be reached as conservatives ask themselves: Why continue working so hard and so often to get nominees carefully vetted and then approved if every new justice seems ready to cast aside principle in the hope of media acceptance or even adulation?
The name of pre-Civil War Chief Justice Roger Taney is remembered today for one of the great miscalculations of American history. Appalled by all the signs of approaching disunion and the growing fury of Southern separatists at abolitionist charges they were themselves corrupted by the moral evil of slavery, Taney sought with his Dred Scott decision (which essentially put the federal government into the business of tracking down fugitive slaves) to stop polarization, help stability, and pacify the angry South. But the South, or at least its leadership and firebrands—driven by the residual guilt and hidden anger that always afflicts those who burden themselves with the defense of institutionalized evil—could never be contented. For them, too much could never be enough.
Thus, Taney’s efforts exacerbated rather than quieted the great struggle over slavery and inadvertently contributed to the rise of Abraham Lincoln and the renown of his Cooper Union response to Dred Scott. In an interesting historical parallel, Taney, in bending the law to quell what he saw as social disorder and unwittingly assisting the rise of Lincoln, would have a counterpart in the U.S. Senate. Stephen Douglas had also viewed himself as a master strategist capable of moderating the nation’s internal struggles by getting the Missouri Compromise replaced with the Compromise of 1850 that only stoked the fires of disunion and led to “bleeding Kansas” and countless sanguinary conflicts in the territories over slavery. At the end of his life, the disheartened Douglas thought of himself as the most reviled man in the country.
Like his senatorial counterpart, Taney too had to face the consequences of his attempt to stage-manage history and personally thwart or at least calibrate the energy of good in its struggle against evil. And, so too, Chief Justice Roberts must look to his historical reputation as he still seeks to appeal to the center of powers of what was once an enlightened (if also wrongheaded) liberalism, a liberalism that stood for tolerance and democratic reform but now reflects the rule-or-ruin mentality of those who seek to crush dissent and impose the cult of state power for the sake of an entitled and privileged ruling class.
So is creeping Taneyism at the High Court? Yes.
And clearly, Chief Justice Roberts is in danger of being remembered like Chief Justice Taney: not only as a symptom and symbol of a corrupted era, but the frustrated adversary of a better age to come.
Augustus Randall is the pseudonym of a former federal official who has worked in three administrations on policy matters involving poverty programs, public corruption, and military tribunals.
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