Roger’s Rules

Justice Kennedy’s Matryoshka Doll

At a small dinner party last night, our host glided lightly over the activities of the Supreme Court this past week in order to canvass the table’s thoughts about who the candidates might be for the 2016 presidential election.  The usual names percolated through the sands of our discussion. My suggestion that Hillary Clinton’s candidacy was by no means a sure thing was met with friendly disbelief.  The Democrats do not have another plausible candidate, ergo, the Hillary is it. I still have my doubts. The aging activist clearly has health issues and is so festooned with scandal—not to mention her utter lack of accomplishment as a senator or secretary of State—that even James Carville must be worried. “No, no,” it was explained to me. “The Hillary is it.  It doesn’t matter what she’s done. Someone could turn up a video of her selling Libyan women and children into slavery and she would still get the nomination. It’s not her against the other chap (or, as it may be, the other lass), it’s their team against ours, blue against red. American politics are increasingly polarized, which means they are increasingly nasty. What matters is power, not principle.”

Maybe so. Or rather, indubitably—at least so far as the concluding observations are concerned.  We’ll see about the Hillary. My friend’s observations about the character of contemporary American politics were still echoing in my mind when I read Andy McCarthy’s essay “Let’s Drop the Charade: The Supreme Court Is a Political Branch, Not a Judicial One.”

McCarthy began by noting the risible anguish of Chief Justice John Roberts, who wrote in his dissent from the Court’s support of same-sex marriage yesterday that “the Court is not a legislature.” No? A scant 24 hours earlier he had joined the majority in saving Obamacare—what Justice Scalia memorably rebaptized as SCOTUScare—by the simple expedient of hermeneutics (that’s Greek for “dissimulation”). The law that Congress wrote states that in order to qualify for health care subsidies people must be “enrolled in through an exchange established by the state.” But the law that the Supreme Court wrote Thursday says that “established by the state” didn’t mean “established by the state.” It meant “established by the federal government.” It’s the Cole Porter school of  legal interpretation: “good’s bad today,/ And black’s white today,/ And day’s night today, . . . Anything goes.”

Amid the cataract of commentary on the Court’s SCOTUScare and same-sex marriage decisions —gloating and ecstatic on one side, anguished and despairing on the other—there has been a curious obbligato from some precincts of the Right, namely, that the decisions are a “gift” to conservatives because now these hot-button issues will not be part of the 2016 presidential campaigns. I think that Michael van der Galien comes closer to the truth when he says: “Conservatives Should Rejoice at the Supreme Court Same-Sex Marriage Ruling? Are You Kidding Me?” The Tenth Amendment to the Constitution states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Which Chief Justice Roberts might want to gloss as “are reserved to the federal government, not the states, and certainly not the people,” because, after all, who’s to say that the Tenth Amendment does not suffer from what the Chief Justice deplored as “inartful drafting”? Whatever.

Andy McCarthy, in the column I link to above, touches on one of the most disquieting features of this orgy of  judicial legerdemain. “[F]or all the non-stop commentary,” McCarthy notes, “one detail goes nearly unmentioned”:

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

Think about that for a moment.  “Jurisprudence,” as McCarthy observes, “is complex.”

Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

When was the last time you saw such debate and principled differences of interpretation on what Latinists might call the Court’s sinister side? Take your time. On the Court, as well as in electoral politics, it’s increasing us against them, our team against theirs, red v. blue. This is not a reassuring development.

In The Road to Serfdom, Friedrich Hayek takes as one of his epigraphs an observation by David Hume.  “It is seldom,” Hume wrote, “that liberty of any kind is lost all at once.” The Road to Serfdom aimed in part to show how socialism, though it came bearing promises of greater freedom and prosperity, inevitably wound up undermining both. It was part of the genius of American democracy to preserve freedom by balancing the powers of various aspects of government one against the other.

I mentioned the Tenth Amendment above because of its quaint idea that the powers not explicitly assigned to the federal government by the Constitution belong to the individual states or to the people. Last week’s Supreme Court decisions remind us just how quaint, how outmoded, that idea is.  I refer in my title to Justice Kennedy’s “Matryoshka doll.” I mean the Fourteenth Amendment. It was to that amendment, ratified in 1868, that the most powerful man in the United States appealed when framing his opinions for the Court. The relevant portion of that amendment says that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The phrases I’ve italicized provide the magic doll-within-a-doll that Justice Kennedy unpacks with such abandon. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment,” Justice Kennedy wrote, “did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” We? Who is “we”?

As Justice Scalia noted in his blistering dissent from yesterday’s ruling about same-sex marriage, the Court’s willful misconstrual of the Fourteenth Amendment “is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People,” Scalia continues,

the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Yet as Hume noted, it is rare that liberty of any kind is lost all at once.  Justice Kennedy stands on the shoulders of his precursors William “penumbras and emanations” Douglas and Harry Blackmun, who in Griswold v. Connecticut  in 1965 and Roe v. Wade in 1973 respectively did pioneering work in transforming a post-Civil-War effort to define and guarantee citizenship into the all-purpose Matryoshka doll it has become. If you doubt that these decisions mark an eclipse of freedom, ask yourself this question: who or what is sovereign in the United States? The Constitution says that it is “We, the People.” Last week’s decisions show that, on the contrary, it is not the people but rather a majority of nine unelected, essentially unaccountable Justices, all of whom hail from Harvard or Yale. Think about that.

As Justice Scalia notes, “the strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.” But the question they conjured with was not a question of legal interpretation. It was a policy, that is to say, a legislative question.  Whatever your position on same-sex marriage, if you care about the future of democracy in America, you should be profoundly disturbed by last week’s proceedings in which bloviating hermeneutical ingenuity gave cover to breathtaking judicial triumphalism.  Justice Scalia is right: to allow such fundamental policy questions to be resolved “by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Now, where have I heard that before?