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How Progressives Are Playing John Roberts


The praise in conservative legal circles for the dissenting opinion of Chief Justice John Roberts in the marriage case has been nothing short of effusive. Ed Whelan of the Ethics and Public Policy Center described it as “excellent,” and Matthew Franck of the Witherspoon Institute praised it. However, in Progressive legal circles we also find the chief’s dissent warmly received. That unusual occurrence should make conservatives raise their antennae.

In a recent long article, Ian Millhiser of ThinkProgress offers his analysis of the chief’s dissent. At first, he soothes the fevered brains of his Progressive readers who might think the chief is just as hopeless a case as the conservative trio of justices Scalia, Thomas, and Alito on same-sex marriage as a policy matter. Millhiser calmly explains that the chief’s principal objection to the majority opinion is on the structure of the argument, not on whether he supports same-sex marriage.

“Roberts’s Obergefell dissent is, at its heart, an attack on the method Justice Anthony Kennedy used to reach the majority’s conclusion that the Constitution forbids states from denying equal marriage rights to same-sex couples,” he writes. There’s a particular reason for Millhiser to focus on form, not substance. Millhiser seeks not to disparage the chief, but rather to heap appreciation on his reasoning, all because Millhiser has his eyes set on a much larger bugaboo than one justice of the Supreme Court: the vast right-wing legal conspiracy.

A Pertinent Supreme Court Case from 1905

More accurately, Millhiser seeks to cast shame upon a currently small subset of the “vast right-wing legal conspiracy” that may be united in admiration for the reasoning in the famous, if controversial, case of Lochner v. New York (1905). The chief cites Lochner in a disparaging fashion no less than 16 times in his dissent, using adjectives such as “discredited” and “unprincipled.” Thus, Lochner makes strange bedfellows out of Millhiser and many conservative legal scholars.

When the chief invokes the specter of Lochner, he is appealing to a ‘settled consensus’ on the Right and the Left.

To those who are unfamiliar with the case and the legal questions that sprung from it, Hadley Arkes offers an overview in his book “Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law”: “The case arose in Utica, New York, in 1899. It involved a law of New York State that limited the working day to ten hours—or, rather, ten hours on the average day, in a working week that had to be limited to 60 hours. A section of the law applied these provisions distinctly to bakeries.

But one question was whether it applied to bakers as a labor law, a law designed to protect vulnerable or ignorant workmen against the dominant power of employers, or was it to be regarded as a species of regulations on health, designed to protect the safety or health of the bakers?” Lochner conjures up very different boogeymen to the Left and the Right. To leftists such as Millhiser, Lochner errs because it finds a “right to contract” implicit in the Fourteenth Amendment, in this case the liberty of those bakers to make their own hours with their employer.

In their thinking, it is like a price ceiling, and of course those are constitutional, just like the minimum wage, a price floor. We should not be surprised that the Left opposes anything enlarging the scope of individual economic freedom. Many conservatives, though, reject Lochner based on formal grounds. To them, the case is an example of the evils of “substantive due process,” a form of legal inquiry that scholars such as the late Judge Robert Bork decried as simply giving license to judges to declare what they like or dislike as constitutional or unconstitutional. When the chief invokes the specter of Lochner, he is appealing to a “settled consensus” on the Right and the Left.

There’s a Third Option in All These Cases

However, the chief is invested in a false dichotomy in the marriage cases and in Lochner. What if there were a third way, a substantive argument to be made for what marriage is based not on democratic consensus, but rather from the very nature of marriage as an institution with the primary purpose of binding together mothers, fathers, and potential children, in an association recognized as the most fundamental unit of the polis (or community)?

The chief’s dissent does not strike down the basis of same-sex marriage as being incoherent and unstable from its contradictory first premises.

The chief does not seem oblivious to the gravity of what the majority did by redefining marriage. In oral argument, he strongly suggested to Mary Bonuato, counsel for the plaintiffs, that though they are seeking to “enjoin the institution of marriage,” they are actually seeking to redefine its primary purpose as the capstone of an emotional union of two people. It is akin to if in a case on free speech, we incorporated into free speech a type of speech that simply cannot be considered worthy of our rational assent, such as slander.

Likewise, when we ask why the government does not sanction all different kinds of relationship marked by an emotional bond, we realize there is something unique in the marital bond and its productive capacity: it is marked by and frequently expressed in the same binding commitments the law requires of us, such as husband to wife and parent to child. However, the chief’s dissent does not strike down the basis of same-sex marriage as being incoherent and unstable from its contradictory first premises. He simply says that the Constitution allows this to be discussed as a matter of public policy.

Just as it is false to assume the only two competing arguments in the marriage cases were not limited to “Does excluding same-sex couples from the institution of marriage harm the dignity of same-sex couples?” and “Can the Supreme Court as an institution install a right to same-sex marriage?” it is false to state there is not a third view of what Lochner sought to determine, namely the extent to which the police powers can abridge fundamental rights in the name of health and safety standards.

As David Bernstein, a Lochner expert at George Mason University Law School, states, “The real Lochner held that a criminal law imposing maximum hours on bakers was not a justified infringement of liberty of contract under the police power because though it was defended as a health law, the government presented no evidence (my emphasis) that the baking was especially unhealthful, while the plaintiff presented strong evidence to the contrary.” Bernstein’s account reveals what the chief is dead set against: giving the judges the ability to test in the most demanding ways whether the laws passed were justified or unjustified, in accordance with our constitutional and founding principles, as determined by the presentation of evidence.

John Roberts Morally Judges Against Moral Judgment

The chief differs in his Obergefell dissent: “A much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues.” Read that again: the chief just said the Supreme Court should not offer moral judgments, by making a moral judgment that prudence is best. If it is clear that judges are going to make moral judgments (even when they say they are not!), why not have them making the best case from right reason and first principles?

Too often conservatives have settled for arguing on procedure.

Let’s return to Millhiser to figure out why he wants us to heed the chief’s “clear message” and not challenge the substance of laws. He wants us to be afraid, very afraid that courts and the legal elite are beginning to entertain certain conservative and libertarian-leaning challenges to existing laws based on those constitutional and founding principles. Millhiser ticks off a recent case from the Texas Supreme Court where the court there struck down state licensing requirements for eyebrow threaders with an opinion drawing on the wisdom of Lochner.

While he is at it, Millhiser also indicts two Republican-appointed DC Circuit Court of Appeals judges who are guilty for not displaying outright hostility to the decision in Lochner. Finally, Millhiser sees fit to blast the Federalist Society, a group who takes no positions on issues and simply provides various forums for public debate and discourse, for giving Randy Barnett of Georgetown University a platform to argue for Lochner.

Understand why Millhiser is afraid: the Left has had a monopoly on arguing Supreme Court cases with appeals to justice, equality, and other substantive ideals. Too often conservatives have settled for arguing on procedure. Those conservatives are not wrong to suggest that the law gains its legitimacy from treating like circumstances alike. Recall, “established by the state” actually meaning “established by the state.”

However, Obergefell is not one of those cases. When the Left challenges the very foundations on which the regime rests (and marriage as the exclusive union of one man and one woman is one of those institutions) they must be met with a substantive argument that thoroughly exposes their claims as justified or unjustified. Undoubtedly, Millhiser has seen the success of certain outfits such as the Institute for Justice win cases for individual liberty using these tactics. He certainly wants them to feel as if the chief will strike down their future appeals prima facie.

Judges Should…Judge

“Just who do we think we are?” asks the chief, halfway through his dissent. I have an answer: you are a judge, so judge! Just because there is lack of consensus on what a reasonable position entails, it does not prevent you from offering a reasoned position. Remember, it is a feature, not a bug, of the separation of powers that if you reach a decision at odds with the other branches, no one branch has a final say on a law’s constitutionality. Those other two branches have just as much a say, if they decide to summon the willpower to address the issue.

Just because there is lack of consensus on what a reasonable position entails, it does not prevent you from offering a reasoned position.

Rather than sidestepping your role as a judge, heed the advice of another member of your guild, Judge Janice Rogers Brown of the DC Circuit Court of Appeals, who delivered a lecture last fall at the Heritage Foundation in which she articulated how the craft of judging ought to be approached in these cases of great import: “Limited government should mean limited judges too, but so long as we have unlimited government, we may need a less limited view of the legitimate role of judges. Judges may need to intervene for the sake of individual liberty, and they must sometimes do so with reference to ultimate values. But is there any principled way to limit the source of value? Western civilization’s great achievement has been to discover and synthesize a network of principles that jointly undergird individual liberty. That achievement owes fealty to both rationality and sacredness, both Athens and Jerusalem.”

Conservatives need to realize that “substantive due process” simply means judges will not sit back, ready to stamp the label of legitimacy on any measure passed with the support of the majority and trappings of legal procedure, that they will in fact act as judges by testing in a demanding way the rationale or justification for the law. The judges, tuned to that kind of discipline, may discover, as Brown suggests, that there’s something sacred about using reason in a strenuous way. At that point, their judgments will make far more sense to ordinary folks than the invocations of “bare textualism.”