This
morning, the US Supreme Court issued its latest pro-abortion ruling, June
Medical Services v. Russo, in which it struck down a Louisiana law meant to
make getting an abortion in that state a lot harder. The big news now is that Chief
Justice John Roberts, who voted against striking down a similar Texan
law in 2016, has switched sides – and without his vote, the liberals wouldn’t
have won this time around.
Honestly,
this whole month has been a steady stream of let-downs for conservatives. Last
week, Roberts voted with the liberals to preserve DACA yet again, and both
Roberts and Gorsuch helped rewrite the Civil Rights Act of 1964 to include LGBT+
in the list of people that an employer can be sued for discriminating against.
Now, John
Roberts said that his abortion decision was all about upholding precedent. Perhaps
he’s telling the truth, though as Roberts had previously helped reverse at
least 17 precedents since he joined the Court in 2005, I think that something
bigger is going on here.
Pessimistic
conservatives – basically, the only kind worth listening to these days – predicted
that this would happen. Back in 2005, during his confirmation hearings, John
Roberts was questioned by the Senate about anti-abortion legal briefs he had
written while working in the Reagan and Bush Sr. administrations. Unlike some judicial
candidates, who simply refuse to talk about issues on which they might rule, Roberts
distanced himself from the opinions he had once expressed. “Senator, I was a
staff lawyer,” he said, “I didn't have a position.” Roberts also described Roe
v. Wade as a “super-precedent” entitled to even more respect than ordinary
precedents.
The
Republican party pretty-much ignored this, and every Republican in the Senate
voted to confirmed Roberts, as did half of the Democrats. This would be the last
time that a Justice got so much bipartisan support.
Roberts
was a consistent conservative vote for most of his career – or in other words,
he voted with the conservatives when it didn’t matter all that much because
Anthony Kennedy was still the swing vote. Now, with Kennedy gone and America’s
conservatives deludedly thinking that their country might actually have a
constitution again, Roberts has made his true colors known. Indeed, he has
voted with the liberal bloc in most of this term’s high-profile cases, culminating an epic run to the left that began
when he saved Obamacare back in 2012.
The main exceptions
to the Chief Justice’s newfound liberalism are his continued preference for
siding with corporations in class-action lawsuits, and his continued opposition
to environmental regulations. Keep those in mind – they say something important
about Roberts and the forces that brought him to power.
Now, I
can bet that the typical Republican politician will blame the outcome of the
abortion case and the immigration case on bad luck, and tell his or her constituents
that if they just keep voting Republican, then maybe they’ll have better luck
next time. But the evidence tells a different story.
Republican
appointees have been a majority on the Supreme Court since 1969, so the fact that
the Court has created a right to abortion, defended it for nearly 50 years,
and also advanced every other socially liberal cause during that time has a simple
explanation: these things happened because influential people in the Republican
Party wanted them to happen. And that is the uncomfortable truth that today's Republicans don't want to admit.
Our country isn’t moving the way it’s moving because the Republicans,
as a whole, are losing some sort of struggle to the Democrats. Rather, America has the
policies that it has – both foreign and domestic – because those are the
policies that have been advanced by moderate Republicans. Chief Justice Roberts
is a moderate Republican, he was put on the Supreme Court by moderate
Republicans, and he is now using his practically-unlimited power to advance the
agenda of moderate Republicans.
Every
Republican president in the post-Roe v. Wade era (possibly excluding Trump,
whose nominees have yet to be tested) has appointed at least one Supreme Court
justice who upheld that decision. Ronald Reagan is unique in having appointed two. These
presidents all knew that the judges they had picked had either previously spoken in
favor of legal abortion (i.e. Sandra Day O’Connor, who tried to legalize it
while a member of the Arizona State Senate) or else were just go-with-the-flow
type lawyers who had no strong opinions about whether or not the constitution still ought to mean what it meant when it was written (i.e. David Souter).
The plain
fact is that, as often as not, these Republican presidents chose unprincipled
moderates over constitutionalists like Edith Jones, the woman whom some of Bush
Sr.’s advisors tried to get him to pick instead of Souter. And they did this
because they knew that Republican senators were fine with taking the easy way
out and confirming a jurist about whom they knew nothing, so long as they could
spin it as a win to their gullible voters.
Democrats,
obviously, have different standards – can you imagine a Democratic president
appointing a judge who made a mystery of whether or not he or she supported
abortion rights? I can’t.
Now,
there are things which moderate Republicans won’t leave to chance when
choosing their judicial nominees. Siding with corporations in class action
lawsuits is a mainstay of moderate Republican jurisprudence, as is siding with
employers in labor disputes, and either striking down environmental rules or
interpreting them as narrowly as possible. John Roberts has consistently lived
up to expectations in these areas.
I also think
it likely that the Republican donor class isn’t much bothered by Roberts’
decisions in favor of illegal aliens – after all, these people like them their
cheap labor.
Perhaps
Donald Trump will win a second term, another Supreme Court seat or two will be vacated
when Ginsburg and Breyer shuffle off their mortal coils, and Trump will get another shot at building a
conservative majority.
His best
choice in that scenario is, I think, to appoint Amy Coney Barrett. Honestly, Trump
should have picked Barret the last time around; having three women on the
liberal side of the Court and none on the conservative side is a huge weakness,
for the simple reason that wishy-washy justices like Roberts are less likely to
vote conservative if it means being on the wrong side of a battle-of-the-sexes.
Am I going to hold my breath waiting for Trump to do this? No – Donald Trump is
mostly bluster, and Republicans in Congress have shown no intention of holding
him to account on judicial appointments or any other issue.
But it
may turn out that Trump doesn’t appoint the next justice at all. Ginsberg and Breyer might outlast him, and it's also worth noting that Joe Biden could win in November (I know that I said a few months ago
that this was impossible, but Trump is handling this year’s black swan events
so badly he might get abandoned by his voters anyway). If either of these things happen, then Ginsberg
and Breyer will be replaced by likeminded liberals, and John Roberts will be
free to keep advancing the left’s agenda for as long as he draws breath.
The Democratic leadership will
not be bothered by Roberts’ jurisprudence, and as many liberals who do complain
about it – that is, those who believe that their party is telling the truth when it says
it is against corporate power and against mass incarceration and in favor of
protecting the environment – will have to learn the hard way that the
Republican party isn’t the only party that has spent the last few decades luring idealistic voters with empty
promises.