False Modesty: John Roberts’ Utter Lack of Restraint

“Fark John Roberts.” One of my conservative friends posted this comment on Facebook yesterday in the wake of the Supreme Court’s decision upholding the Affordable Care Act, in which the Chief Justice unexpectedly sided with the four liberal justices to preserve one of President Barack Obama’s landmark legislative achievements. To be fair, it is easy to understand why my conservative friend might feel betrayed that Roberts, a George W. Bush appointee with a record as a right-wing ideologue, turned a near certain defeat for Obama into a triumph. Imagine how progressives would have felt if Breyer, Ginsburg, Sotomayor or Kagan had ruled against the constitutionality of the Voting Rights Act or affirmative action.

In essence, though, they may have done just that, as the Supreme Court will soon hear cases on those very subjects. While some observers have adopted the view that Roberts used the health care reform decision to recast himself as a believer in judicial restraint, it is more likely that Roberts made a calculated ploy to achieve a major right-wing victory while also establishing cover for decisions that will have conservatives like my friend praising Roberts’ name.

Noah Feldman, a professor of constitutional law at Harvard, has been the main advocate for the “Roberts as evenhanded King Solomon” viewpoint. According to Feldman, Roberts put his politics aside and instead nobly followed his ethics. He claims Roberts feared becoming the chief of “the most activist conservative court since the 1930s” and opted instead for acknowledging Congress’ ability to levy taxes. If Obama and other Democrats had refused to identify the penalty for not complying with the health care bill’s individual mandate, then Roberts was merely speaking truth to power, forcing the Democrats to own up to the law they passed. Although Roberts made it clear in his opinion that he did not think the Commerce Clause of the Constitution allowed for Congress to impose the individual mandate, Feldman hand-waves this as insignificant, as Roberts “wav[ing] the conservative standard” and no more.

There are a number of problems with this. First, if Roberts wants “judicial restraint” to be synonymous with his court, he has done a lousy job so far. In fact, as Jeffrey Toobin, Thomas Mann and others have exhaustively documented, Roberts took a major role in the now infamous Citizens United decision in 2010. Assuming you’ve been living under a rock for the last three years, Citizens United overturned over a century of national and state campaign finance laws, equating corporate donations to political campaigns with free speech and basically undoing all legal obstacles to “dark money” in politics. Rather than determining whether the McCain-Feingold campaign finance law applied to a documentary, Toobin tells us Roberts instead overruled not just McCain-Feingold but two Supreme Court precedents – one decided as recently as 2003 – ensuring “moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” Cleverly, Roberts allowed Anthony Kennedy, an extreme libertarian for whom “government regulation” is a dirty word, to pen the majority decision, thereby distancing Roberts from charges of hypocrisy. After all, during his confirmation, Roberts had claimed he would defer to precedent. Citizens United proved otherwise, and given its notoriety as the Roberts Court’s most well-known decision so far, Feldman’s claim that Roberts wants a modest legacy is clearly risible.

The second problem with Feldman’s argument is that Roberts’ reading of the Commerce Clause amounts to much more than hat-tipping to a right-wing talking point. In her dissent, Ginsberg called Roberts’ interpretation of the clause “stunningly retrogressive,” likening to that invoked at the turn of the century, when the Supreme Court elevated contracts between employees and employers above social issues. This period, known as the Lochner era, saw the Court issue numerous rulings that struck down laws protecting the health and safety of working people. If Roberts is indeed signaling his intent to take the Court back to this view, in which the Fourteenth Amendment equates to social Darwinism (to paraphrase Oliver Wendell Holmes’ dissent on Lochner), the implications are huge. If Congress does not have the power to regulate health insurance, whose market exceeds $2 trillion per year and takes up over 17% of our yearly GDP, what power would it have to regulate the energy industry and combat global warming? Perhaps more importantly, what could happen to other laws that rest on the conventional doctrine of the Commerce Clause, like the Civil Rights Act of 1964, should they come up for review in the future? A new, strict reading of the Commerce Clause is a radical step for the Court to take – or, more accurately, a massively reactionary step that takes the Court to a mentality over a hundred years in the past. It is doubtful that progressives showering love on the Court’s decision on the Affordable Care Act will do the same when the Court potentially uses the decision to permit businesses to discriminate against non-white customers or to allow those businesses to pump as much emissions as they please into the atmosphere.

It may not take as long as one of those hypothetical scenarios coming true for liberals to resume their hatred for Roberts and the Roberts Court, however. Sometime next year, the Court will determine the constitutionality of Section 5 of the Voting Rights Act, which forces several jurisdictions (mostly in the Deep South) to get “preclearance” from the Justice Department to amend their electoral laws. The point of the law then and now is to prevent those jurisdictions from passing reforms that would make it difficult or impossible for racial minorities to vote. The Voting Rights Act was renewed for 25 years in 2006, prompting outrage from conservatives, who predictably argued that times have changed and racial discrimination vis-à-vis voting is no longer a problem. The issue came before the Supreme Court in 2009 but was dismissed on technical grounds, but not before Roberts indicated he would strike down Section 5 because “discriminatory evasions of federal decrees are rare” and “minority candidates hold office at unprecedented levels.” Yet is it all that remarkable that “minority candidates hold office at unprecedented levels” when that level was negligible fifty years ago, when Jim Crow was in full effect? We may have an African-American president in the White House, but the cases of Henry Louis Gates, Jr. and Trayvon Martin demonstrate we certainly do not live in a “post-racial society.”

More to the point, though, the rise of voter ID laws in mostly Southern states (surprise, surprise) serves as proof positive that voting rights laws are still relevant. Led by neo-nativists like Kansas Secretary of State Kris Kobach, right-wingers throughout the South and Heartland are promoting the baseless conspiracy theory that voter fraud is a major issue that requires the implementation of voter ID laws as well as purges of “non-citizens” – who, as the Washington Post points out, may actually be citizens entitled to vote. Although research shows actual occurrences of voter fraud to be minor at most, Republican governments – like Rick Scott’s government in Florida – are going forward with efforts that may end up disenfranchising minority voters who tend to vote Democratic (surprise, surprise again). If anything, Obama’s election in 2008 awoke an ugly side of conservatives, revealing a prejudice that if minorities turned out in huge numbers to elect one of their own, they must be doing it illegally. If the protections provided by the Voting Rights Act have been successful, that success is not an argument for the act’s demise.

If Roberts is poised to kill the Voting Rights Act, his axe is also sharp for affirmative action. Many thought the issue settled for some time in 2003 with the Grutter decision, in which the Supreme Court allowed states to consider race in university admissions processes. Yet this will likely be reversed when the Roberts Court hears Fisher v. University of Texas, as Roberts showed in a 2007 opinion that he does not see much merit in affirmative action as a method of promoting “racial diversity.” With Kagan stepping to the sidelines due to her involvement in the case as solicitor general, the door is wide open for Roberts to lead the way in once again reversing something most people would have stated was settled.

Feldman’s analysis is wrong. Roberts did not put his principles before politics. If anything, this Supreme Court is defined by its partisanship. Like most Americans, I don’t expect the Court to be unanimous in its decisions. The Court is not intended to hear easily resolved cases, obviously. What is expected, however, is that the Court’s justices put aside their personal ideologies in the interests of doing what is just. In many instances, this means affording proper reverence to past decisions, giving fair treatment to plaintiffs and defendants alike. In rare cases, the Court may break with precedent, as it has done on civil rights, when justice conflicts with the law. It is hard to perceive, however, what is just in allowing money to drown out regular people in politics, in preventing the federal government to manage economic activity, in permitting obstacles to minorities voting or in blocking institutions from seeking diversity in their admitted membership. It is very easy, though, to see how this Court serves the interests not of the public but the political parties that put them where they are.

The legacy of the Roberts Court will not be one of pragmatism, restraint or diffidence. Instead, it will be a dismal exhibit of when the expediency of political interests tipped the scales of justice.

After Mubarak, It’s the SCAF-terparty

(I intended to post this last week, but due to some issues with posting on WordPress, I was unable to do so until now. Other than there being a new Egyptian president, most of the post is still relevant.)

News outlets buzz with stories about the failing health of ousted Egyptian dictator Hosni Mubarak. Yet does it matter whether the former despot lives or dies? Even if he passes away in the next few days, the institution he used to govern the country – the military – retains their hold on power. The tens of thousands people returning to Tahrir Square, the main site of Egypt’s protests during the Arab Spring, are not coming back because of Mubarak. They are resuming the expression of their dissent because the Supreme Council of the Armed Forces (SCAF), the generals currently ruling Egypt, has declared strict limitations upon the powers of the newly elected president. Who that newly elected president is, however, is unclear, as both the Muslim Brotherhood candidate, Mohamed Morsi, and the candidate of the old regime, Ahmed Shafiq, have proclaimed victory. All this follows on the heels of the Supreme Constitutional Court, which is closely linked with the SCAF, dissolving Parliament and giving a seal of approval to Shafiq’s candidacy, despite his ties to the brutality of the Mubarak era. Egyptians are rightfully concerned that their new democracy is at death’s door, not Mubarak.

Is it fair to blame the Egyptian people for the dark prospects their revolution faces? After all, it is long-entrenched institutions have stymied and reversed democratic reform, not the people, who cannot be accused of a lack of enthusiasm for change. Nevertheless, one can fault them for the half-measures with which they have sought that change, enabling the generals and their judicial allies to undermine and reverse the gradual seizure of power away from the narrow elite. Two developments especially testify that the Egyptian revolution has been stillborn: the emergence of Ahmed Shafiq as a serious contender for the presidency, and the very fact that the SCAF rules the country in the first place.

Given that the ongoing narrative is that Egypt just went through a revolution, it is illogical that Ahmed Shafiq could potentially be the new president. It would be the equivalent of the French Jacobins electing a member of the royal family to head the National Assembly. The former prime minister who once described Mubarak as a “role model” does not stand for where people want the country to become in the future, but rather what it used to be. Who would want that? Those who benefited under Mubarak, of course. Mubarak ruled through the military, and army officers would be understandably reticent to see that end. Additionally, there are the millionaires who thrived despite the growing income disparity and rising poverty of Mubarak’s Egypt, along with crooked bureaucrats and other officials who enjoyed luxury thanks to nepotism and graft. Every revolution has its reactionary elements.

More worrying are those among the oppressed who nurture that which destroys them. Long-suffering Coptic Christians fear what will happen under an Islamist administration rather than a secular one. Liberals disenchanted with widespread support for the Muslim Brotherhood have decided to sit on the sidelines and sometimes even vocalized preference for a liberal dictatorship than a religious democracy. Then there are those who simply want stability for stability’s sake – for someone to fill the power vacuum, regardless of who they are or what they represent as long as they can bring order and a return to “normalcy.”

These people are buying into the very argument Mubarak attempted to use for his continued stay in power. He claimed that without him there would be anarchy. Of course, as my former professor Diane Singerman and the famed intellectual Slavoj Zizek have pointed out, Egypt is so unstable without a strongman government precisely because Mubarak crushed civil society and let it languish, ensuring that only those institutions groomed and developed by him – the military chief among them – could ever hope to impose themselves on the country. As Zizek put it, “The argument for Mubarak – it’s either him or chaos – is an argument against him.”

Mubarak is no longer relevant, but his military cronies remain. The assumption is that the SCAF will only fill the void, playing a transitional role before standing aside, giving up the control and influence it has enjoyed with near-exclusivity for around thirty years. We are expected to regard SCAF as Atlas from Greek mythology, holding up the heavens as a punishment, a begrudging but necessary responsibility, one that those belabored generals would only too happy to relinquish – especially to candidates of the Muslim Brotherhood, the very organization the Egyptian military has spent decades upon decades stamping out, the very “enemies of the state” they have been indoctrinated to despise. How naïve would someone have to be to accept this fiction? The SCAF will hold on to power, tooth and nail, and whether the acts of the last few weeks speak more to uncertainty and confusion than to a genuine stealth coup d’état ultimately matters little. The outcome will be the same: the dream of democracy in Egypt remaining just a dream, an experiment too dangerous for the public to actually realize.

Egyptians should take a lesson from history and know that when the state is weak and vulnerable it cannot be trusted to change for the better. It must be torn down and destroyed, then rebuilt on new terms, on new conditions, with the people overseeing the project by themselves. The generals of the SCAF should not be sitting behind desks making executive decisions but standing before a firing squad – or, at the very least, on planes to sit at the Hague, in the stead of Mubarak, their former boss.