Courts

John Roberts Will Not Save Us

Just because there are four justices to your left, and four justices to your right does not make you a centrist.

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Chief Justice John G. Roberts, Jr. (via YouTube).

If you’re like a lot of people, distraught over the imminent retirement of Supreme Court Justice Anthony Kennedy, you may have spent the morning trawling the internet for good news — something to reassure you that the country is not headed towards a right-wing hellscape. You may have even come across my colleague David Lat’s piece on the Supreme Court. But as much as that may comfort you in the short term, I’m afraid it is nothing short of mainstream centrist porn designed to take you out of the fight before us.

Lat pins a lot of hope on Chief Justice John Roberts and his supposed centrist leanings, as evidenced by his decision in National Federation of Independent Business v. Sebelius (the Obamacare case), where the Chief Justice cast the deciding vote that saved the law. But that downplays the way the decision was really a backdoor effort to undermine the commerce clause (which under America’s curious jurisprudence forms the foundation of many civil rights cases). And just because there are four justices to your left, and four justices to your right does not make you a centrist. When Trump nominates, and the Senate inevitably confirms, any of the FedSoc acolytes on the short list, the “middle” of the Court will be shifted to the right and that is dangerous for a whole shit ton of reasons, including gay rights and reproductive freedom.

In his article, Lat argues that two cornerstone civil rights cases — Obergefell and Roe — will be safe from an overturn. And it is certainly true, no matter who becomes the next Supreme Court justice, those cases are likely to remain good law — avoiding the red flag treatment, if you will — for at least 5 – 10 years. But to act like those rights won’t be under attack when the middle of the Court moves to Roberts’s worldview is a short-sighted case of ostriching.

Just look at Roberts’s votes in National Institute of Family and Life Advocates v. Becerra and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission this Term. Reproductive freedom and gay rights are absolutely under attack and ignoring that only makes it worse. Conservatives know they do not need to formally overturn a cornerstone case to win because the effect will be the same even as they disingenuously claim to adhere to that precedent. Rights can die by death of a thousand cuts. Don’t believe me? Just try to get an abortion in Mississippi.

Also federalism, long the bastion of the right, will not “save” these basic rights — that’s not how rights work. Personally, I feel pretty good about my reproductive freedom (particularly if Cynthia Nixon is able to unseat Andrew Cuomo) but that doesn’t mean the freedoms of people living in Mississippi aren’t worth fighting for. I am not willing to write off women and gay people just because they don’t have the luxury of living in New York.[1]

In a piece in Slate, law professor Rick Hasen argues that the options for resistance are limited — there are no parliamentary tricks left to play. But that doesn’t mean our fear and anger has no place in the political discussion. Indeed, making our voices heard is the only chance we have — even if it is a small one:

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The only political hope here is for massive street protests, like we saw with the initial Trump travel ban to try to convince senators like Susan Collins of Maine or Lisa Murkowski of Alaska to vote no. It’s a long shot because we’ve seen these senators fold time and again. But it is worth trying.

For legal nerds, the Supreme Court might seem like an obvious rallying point, but it’s likely to be a harder sell to most. However, making this an issue now, before Roberts is thrown into the middle of the Court where he can do optimal damage, is key:

But we know that Roberts is a patient and savvy man, and he likes to write opinions that look minimal but do maximum damage. With him in control of the court, he can do a lot of damage that looks like only incremental change. It may be 2020 or later before people start seeing how terrible things really can become, like the frog that slowly comes to a boil.

It’s a mistake to think the rule of law will save us. It hasn’t. It won’t. We need to get angry and stay angry. It’s our only hope.

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[1] And that assumes Congress will not be embolden to try onerous federal abortion restrictions, which they just might do.

headshotKathryn Rubino is a Senior Editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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