Our crucial Supreme Court
“Judges are not politicians in robes.”
Judge Neil Gorsuch, nominated for our Supreme Court in 2017, used that phrase to emphasize the law’s majesty, and to avoid answering hypothetical questions by politicians known as United States Senators. In June, the Court issued three decisions on politically charged matters. They struck down a Louisiana law requiring hospital-admitting privileges for doctors conducting abortions, extended federal civil rights protection to LGBT employees, and halted Trump administration plans to end Deferred Action for Childhood Arrivals, which protects that category of undocumented immigrants. Another important decision, stating the president has authority to remove directors of the Consumer Financial Protection Bureau, should satisfy conservatives. This matter, however, is less emotionally charged. Chief Justice John Roberts sided with the majority in these decisions. This reversed his earlier vote on a similar abortion case, Whole Woman’s Health v. Hellerstedt, when he was in the conservative minority.
That decision is now law and precedent, a rejoinder to critics who criticize the chief justice for changing his position. Justices should pursue the law, not personal preference. In this sense, Gorsuch was right. Our common law system is the foundation of our government. Judges should not make decisions lightly or arbitrarily. They rarely do, especially at the federal level. Yet intense partisanship charges the most controversial, visible issues, including those just cited.
Such cases can be extremely controversial
An excellent example is the 2011 decision in Snyder v. Phelps regarding freedom of speech. In an 8 to 1 decision, the Court determined a hate group could picket military funerals, despite the added suffering imposed on those bereaved. The bigoted “church” involved craves publicity, pursued in disgusting ways, and will not be named here. The First Amendment protects their free speech, and ours.
By contrast, in June 2012 the Court narrowly upheld the Affordable Care Act and a related law. National Federation of Independent Business v. Sebelius was decided 5-4, with Chief Justice John Roberts joining liberal justices. President Barack Obama’s statement immediately after the Court decision emphasized benefits for people in need, not the legal considerations. The Court confirmed the Affordable Care Act on authority to levy taxes. The Obama administration had argued that requiring insurance was justified under the interstate commerce clause of the Constitution. The Court rejected this. The taxation basis permitted Roberts to join liberal justices. He has stated his goals include greater Court consensus, laudable but very difficult. Roberts, confirmed in 2005, is erudite, cool under pressure, comparable to Gorsuch. Hapless Justice Brett Kavanaugh, confirmed after painful public controversy in 2018, lacks such skills. This recalls another chief justice, Earl Warren. On taking office in 1953, Warren confronted a 5-4 division on the Brown vs. Board of Education school desegregation case. Warren delayed voting and spent months talking with his colleagues. The ultimate vote was 9-0.
Historically, politicians were well represented on the Supreme Court. President Abraham Lincoln, a successful trial lawyer and remarkably skillful politician, elevated Treasury Secretary Salmon P. Chase, a powerful rival, to be Chief Justice of the Court. Chase excelled in the difficult job. Roberts has written that the Founders of the United States were “practical statesmen, not metaphysical philosophers.” The academics and activists comprising today’s Supreme Court should heed this.
Arthur I. Cyr is Clausen Distinguished Professor at Carthage College and author of “After the Cold War” (NYU Press and Palgrave/macmillan). Contact acyr@carthage.edu.