As a new term begins for the Supreme Court, the pressure campaign against Chief Justice John Roberts is picking up. For example, The New York Times ran an op-ed that labeled Roberts the “extreme, right-wing leader of an extreme, right-wing majority.” If only.
This overwrought assessment comes from Take Back the Court, a leftist group created to promote packing the Supreme Court. Its perspective is exemplified by its advisory board chairman, Mark Tushnet, the Harvard Law professor who called for treating conservative Christians like defeated Nazis. Roberts is not the extremist here.
Fortunately, the court is unlikely to be packed, even if the Democrats win the next election. However, the threats and insults the left is aiming at the court are meant to intimidate the chief justice, and they may succeed even if their more grandiose schemes for court-packing come to nothing.
To the Left, ‘Legitimacy’ Means Doing What They Want
Roberts cares about judicial restraint and the perceived legitimacy of the court, and the left views these concerns as weapons they can use against him. Thus, they will declare any Supreme Court opinion they dislike to be illegitimate, regardless of whether it is right as a matter of law. And if they believe this smear campaign pressures Roberts to change his votes (and they have reason to hope, given Roberts’ apparent switch to save Obamacare and reported recent switch to prevent the census citizenship question), they will double down on the attacks.
This unprincipled approach to the law is illustrated by their hypocrisy over the judicial treatment of precedent. The New York Times article makes much of Roberts’ votes to overturn precedents, but the left respects precedent the way the Brezhnev Doctrine respected territory: What we have, we hold; what we want, we take. Thus, even as leftists condemn Roberts for overturning precedents they like, they are drawing up lists of other precedents to overturn as soon as they seize control of the court.
After all, the left’s legal standard is the will to power. Rather than accepting the rule of law, they believe the courts are another political battleground. Thus, abandoning sound constitutional and legal reasoning because of their threats will only encourage more threats requiring more appeasement. The lesson Roberts should learn is that the legitimacy of the Supreme Court will best be vindicated by its ruling in accord with the law and the Constitution, as understood when enacted. Adhering to the law as written is the guarantee of the court’s legitimacy.
This originalist approach does not ensure easy analysis, and sometimes the law requires policy outcomes judges dislike. But the alternative is to elevate private judgment above the laws enacted by the people and their elected representatives. That is what the left is trying to protect; all their talk about legitimacy, stability, and precedent is an attempt to preserve their previous judicial power grabs.
Left Used the Supreme Court to Unlawfully Allow Abortion
Although many of these power grabs have occurred, the left’s supposed concern for precedent and judicial extremism is most of all about abortion. The latest broadsides are a reaction to the court’s considering the constitutionality of Louisiana’s abortion regulations.
This case should be an easy call, as nothing in the text or history of the Constitution suggests that it protects a right to abortion, let alone prohibits states from regulating abortion facilities to ensure they meet health and safety standards. The left believes, however, that unborn humans have no rights that adults are bound to respect, and it has imposed this view on the nation by judicial fiat. By capturing the court, the left was able to enact a radical pro-abortion regime in the Unites States, one that it could never have achieved through democratic means.
This is why the left insists that respect for precedent requires conservative justices to sanction the left’s judicial coup. For instance, another New York Times article declares Louisiana’s law “flagrantly unconstitutional” without any discussion of the text or history of the Constitution — it only mentions precedents. Yet Supreme Court justices do not take an oath to precedent but to the Constitution. They are therefore bound to overturn bad precedents.
The invention of a constitutional right to abortion made the Supreme Court the arbiter of every democratically enacted restriction or regulation on abortion. In seeking to overturn Roe v. Wade, abortion opponents are asking only that abortion be subject to the ordinary democratic deliberations of the people and their representatives. In the current case, the state of Louisiana is not even asking that much; it is merely seeking to regulate abortion facilities, not prohibit abortion.
The Constitution Trumps Precedent Every Time
The court’s usurpation of abortion policy has distorted law and politics for decades. Abortion opponents have spent years patiently working through the political process to confirm Supreme Court justices who will follow the Constitution and return abortion policy to the democratic process. Betraying the Constitution and pro-lifers again will do far more damage to the legitimacy of the court and our political system than a minority of radical, pro-abortion leftists could do.
That radical minority is dominant among law school faculty, national media, and the Democratic Party. But most Americans are not as pro-abortion as the regime that has been imposed on them, which is why abortion advocates are desperate to keep abortion policymaking undemocratic.
Many voters are unclear regarding the details of Roe, Doe, Casey and other Supreme Court rulings on abortion, but they favor more restrictions than these precedents allow. For the Supreme Court to continue to violate the Constitution by striking down these democratically enacted laws would destroy its credibility.
The political fallout would be unpredictable but assuredly destabilizing. The Republican Party would collapse if abortion opponents gave up on it, and an emboldened Democratic majority might go ahead and pack the court despite Roberts’ capitulation. This would lead to further radicalization and escalation, ending with no one respecting the court.
Hopefully this will not come to pass. But the surest way to protect the legitimacy of the court is for the justices to faithfully uphold the Constitution, rather than caving to pressure campaigns.