Redburn Reads, July 15, 2023
Friends,
I’d like to indulge in a little alternative history, as a way to understand just how tragic it is that we have a Supreme Court that will continue to damage the United States for the rest of my life–and beyond.
Imagine, for a moment, if Hillary Clinton and her campaign managers had not indulged their wishful thinking about sweeping the Electoral College and instead had concentrated on shoring up the Blue Wall states of Wisconsin, Michigan and Pennsylvania. For all his appeal to the white working class, Trump would nonetheless have lost the 2016 election if the Clinton campaign had been more competent.
Consider the consequences for the Supreme Court – even if the Senate had remained under Mitch McConnell’s thumb. Clinton would have nominated Merrick Garland (Obama’s blocked nominee) or someone similar to replace Anton Scalia. Garland and his moderate credentials would have won over a couple of Republicans. And McConnell, after his phony argument for not giving Obama a vote during the last year of his presidency, would have been forced to allow it.
I’m guessing that Anthony Kennedy would not have retired (as he did to give Republicans the opportunity to replace him), but that Ruth Bader Ginsberg would have. And let’s say that Clinton had nominated Ketanji Brown Jackson to replace her and won her approval from the Senate.
At that point the Supreme Court would consist of two arch-conservatives, Samuel Alito and Clarence Thomas, two more normal conservatives, John Roberts and Anthony Kennedy, two moderate liberals, Garland and Stephen Breyer, and three out-and-out liberals, Sonia Sotomayer, Elena Kagan, and Jackson. The liberals would be in the majority and the central pivot of the court would be Garland rather than Roberts.
This Supreme Court would not have overturned Roe v. Wade, would have limited racial discrimination by sustaining the power of the Voting Rights Act, would not have prioritized religious liberty over other rights, would not have weakened the authority of the Environmental Protection Agency, would not have made it harder for public sector unions, would not have given free license to gun owners, would have found a way to sustain some form of affirmative action. And that’s just the cases the Court actually dealt with; other issues would have arisen, perhaps allowing the Court to limit the power of rich donors to hide their identity and play such a powerful role in elections. And who knows what else.
Instead we have a radically conservative Court (with at least a couple of openly corrupt Justices) largely shaped by Leonard Leo and the Federalist Society, that will oversee the law for a generation. While the Court has pulled back from the brink (rejecting the so-called independent legislature doctrine and curbing state’s ability to limit the impact of Black voters), our democracy remains very much in peril.
In a penetrating essay for the New York Times opinion section, Linda Greenhouse, who covered the Supreme Court for The Times for 30 years, looked at the Roberts Court in full. It is not a pretty picture.
To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.
To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies. . .
That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court. . .
It’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.” . . .
The Heller decision in 2008 opened the Second Amendment door a crack, granting individuals the right to keep a handgun at home for self-defense. Chafing at Heller’s limited scope, Justice Thomas complained repeatedly over the next 14 years that the court was treating the Second Amendment as a “second-class right.” He finally won the day with the Bruen decision in 2022, a breathtakingly broad opinion rejecting any limitation on gun ownership that can’t be tied to an analogous limitation in the 18th century. On June 30, the court agreed to hear United States v. Rahimi, which will put this approach to the test. The question in the case is whether the Second Amendment allows the government to bar gun ownership by an individual under a restraining order for domestic violence. That the answer actually might be “no” — domestic violence wasn’t even a concept in the 18th century, when the Second Amendment was adopted — is too astonishing to contemplate. . .
My focus here on what these past 18 years have achieved has been on the court itself. But of course, the Supreme Court doesn’t stand alone. Powerful social and political movements swirl around it, carefully cultivating cases and serving them up to justices who themselves were propelled to their positions of great power by those movements. The Supreme Court now is this country’s ultimate political prize. That may not be apparent on a day-to-day or even a term-by-term basis. But from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.
And consider how isolated the Court is from the normal strictures (advanced over decades of struggle) that govern the behavior of other public figures. James Fallows, in a recent post for his Substack newsletter, notes that “the branch of government that depends most on trust cares least about preserving it.”
This is not Samuel Alito. Instead it’s an image of Pompeia, the second wife of Julius Caesar and the inspiration for the line that “Caesar’s wife must be above suspicion.” And by extension, that people in positions of authority should anticipate questions about their probity. If Alito himself and other members of the U.S. Supreme Court lived by that principle, the Court might not need outside supervision. But they don’t, so it does. (Library of Congress image.)
Here’s a summary of the paragraphs that follow:
The nine lifetime-appointees on the US Supreme Court have more individual power than anyone else in US public life.
Yet those nine members are under fewer formal controls on their ethics and possible conflicts than any (and I stress any) other federal official or employees, including those with purely clerical or administrative duties.
The legitimacy of the Court therefore depends on the rest of us believing that those we trust with power are trustworthy.
The current Court has shown that it is not.
Therefore it is time for outside intervention, and supervision.
Now, more details.
Virtually every other important role in modern life is subject to outside checks and scrutiny. Doctors have review panels. Corporate officials must answer to boards. Elected officials must answer to the voters. These safeguards are imperfect, but they’re something.
They apply within most of the judiciary as well. Every member of the federal judiciary except those nine on the court is subject to ethics laws and disclosure requirements. But until now, these nine have asserted that they—uniquely among humanity—should answer to no authority beyond what they deem right themselves.
Some people might have believed in this before. But human experience suggests its pitfalls. For instance, many people once believed in self-regulation of a beyond-reproach clergy.
In the Thomas-Alito era, no sane person can believe that the Supreme Court is an exception to the lessons of all other human experience. Individual members of the Court plainly won’t live by the “Caesar’s wife” standard. And the Court’s only internal “authority,” in the form of the Chief Justice, plainly lacks the power to enforce any standards.
The Court won’t impose any limits, standards, or self-criticism on itself. So someone else has to.
In an opinion piece for the NYT, the historian Jeff Shesol notes the ethical violations of Thomas, Alito and Gorsuch, but puts most of the blame for the Court’s degradation squarely on the shoulders of its Chief.
In June 2012, at the end of a contentious Supreme Court term that decided, among other things, the fate of the Affordable Care Act, Chief Justice John Roberts prepared to leave for Malta, to teach a course on the court. “Malta, as you know, is an impregnable island fortress,” he joked on the eve of his trip. “It seemed like a good idea.”
Eleven years later, Malta no doubt retains its allure. The term that just ended must have been a torment for the chief. The court’s popularity has plunged to record lows; its members bicker on and off the bench; calls for the court to be packed are commonplace. Such circumstances would pain any chief justice, this one more than most. From the start of his tenure in 2005, he has painted himself as an institutionalist whose paramount concern is the court’s integrity. He conducts himself accordingly: He is decorous, almost regal; he speaks of moderation and judicial minimalism. He keeps a sovereign’s distance from modern life. In 1867, in a classic book on the English constitution, Walter Bagehot wrote that in times of change, “the most imposing institutions of mankind” maintain influence by demonstrating an “inherent dignity.” It is ironic, perhaps bitterly so, that a collapse in public esteem has become a hallmark of the Roberts court. Rarely, in recent decades, has the institution seemed less worthy of reverence.
The chief justice is portrayed by some as a tragic figure, powerless to save his court from itself. But the tragedy of John Roberts is that he does have the power to restore some measure of the court’s reputation — he just hasn’t used it. He has attempted, here and there, to restrain the court’s crusaders — by siding with liberals in the Alabama voting rights case, for example, and soundly rejecting the “independent state legislature” theory — but mostly, he has suggested that their methods and conduct are above reproach. His idea of integrity, it turns out, is a brittle thing, and self-defeating. It has put the court’s reputation at greater risk; it has made the court more, not less, vulnerable to public scrutiny and to encroachment by Congress and the White House.
The United States has always fallen short of its ideals, of course, including the founding principal of equality before the law. But the Court, rather than seeking to counter the force of class and racial inequality in American society, has moved to enhance it. As Trevor Jackson writes in the New York Review of Books, the student loan case reminds us “that the crimes of rich are more readily absolved than the debts of the poor.”
Every spring, when students come to my office and ask for advice about life after graduation, I tell them the same thing: don’t become a graduate student, instead try to become a bank, because then the government will care about you. I did not expect the first six months of 2023 to demonstrate the point with such precision and cruelty.
There are three immediate reactions to the Supreme Court’s decision in Biden v. Nebraska to block student loan forgiveness. First, of course it is a hypocrisy impressive even by the standards of the time. Compared to Clarence Thomas’s gifts from the richest 1 percent of Nazi memorabilia enthusiasts, the sudden payment of Brett Kavanaugh’s extravagant credit card debts, or Samuel Alito’s propinquity to hedge fund billionaires, apparently the decision to take out loans to get an education is unforgivable. As so often, here the court is symptomatic of a wider elite trend. The database of the Paycheck Protection Program is a rich seam of forgiveness, including, variously, $960,000 to the quarterback Tom Brady’s sports performance and nutrition company and $447,000 to OceanGate, the now-famous operators of Titanic submersible tours. Don’t become a student, become a millionaire quarterback’s wellness company, because then the government will forgive your loans.
Second, of course the decision undermines the legitimacy of the court. But that ship has surely sailed, with no obvious consequences. Short of the Biden administration declaring that Marbury v. Madison is itself illegitimate because judicial review does not appear in the Constitution, it is unclear how the power of an illegitimate Court will be less than that of a legitimate one. The administration is already announcing that it will explore other solutions, and perhaps it will find one. Doubtless there are other emergency powers available to the executive, or baroque means-tested stratagems that will appeal to Congress. But as Keynes might have said to student borrowers, the court can stay illegitimate longer than you can stay solvent.
And third, of course the decision is fiscally unnecessary and economically harmful. The 40 million Americans whose payments will resume in October will not spend that money on goods and services; they will pay it to the Department of Education, which does not need to turn a profit, and which will not itself spend that money buying goods and services. The previous assault on student borrowers, shouted in the middle of the debt ceiling theater, also appeared in the guise of fiscal responsibility. A solid bloc of Republicans, plus Joe Manchin, Kyrsten Sinema, and Jon Tester, passed a resolution to use congressional rules to overturn what the representative Virginia Foxx called “the Biden Administration’s student loan scam” on the grounds that it “could end up costing taxpayers $1 trillion.” Biden vetoed it immediately. The eventual deal to raise the debt ceiling included a provision that the pause on student loan repayment that began under Trump in 2020 and was extended by Biden would end, and the administration would be prevented from extending it again without congressional approval.
There are allocative reasons not to take claims like Foxx’s seriously (we can afford that Pentagon budget, after all) and technical reasons (the US government borrows in its own currency, which it produces at will) and Keynesian reasons (erasing debt from the Department of Education’s balance sheet harms no private borrower and stimulates spending). Claims to fiscal responsibility are so clearly a matter of transparent partisan conflict that the only surprise is how often Democrats take them seriously.
I’m heading off on another trip soon (this time for a family wedding in Colorado) so I probably won’t write another Redburn Reads until after Labor Day. Enjoy the rest of your summer.
Take care,
Tom