John Roberts and The Case of Dred Scott v. Madison

Last March, I wrote a post about the Court's consideration of the health care law. My point then was that it was possible for a judicial victory to turn into a political defeat. That could still be the case, if the Court's ruling upholding it motivates the conservative base that is so viscerally opposed to the Affordable Care Act. Already, in an echo of the reaction to the Brown v. Board decision, some in the blogosphere are calling for the impeachment of Chief Justice John Roberts.

My major concern in the original post was that the Court's conservative wing would overreach, much like Roger Taney did in the Dred Scott decision in 1857. The temptation had to be great. The conservative movement is nearly unanimous in its rejection of the act, and even the so-called "moderate" swing vote, Justice Anthony Kennedy, was prepared to throw out the entire law.

It seems, however, that John Roberts was sensitive to that danger. Certainly he could have sided with the four conservative justices in this case. But he didn't. Why?

My good friend Bill Carleton wrote the following in a comment to my original post:

What you say reminds me of a CSPAN documentary I just saw about the workings of the Supreme Court. The current Chief Justice, John Roberts, is heard in a voice over, as the camera pans the portraits of prior Chief Justices, remember the lesson of Taney - don't be THAT man.

It would seem that Roberts thought exactly that. Taney's overtly political decision tarnished the reputation of the Court for years. By avoiding a 5-4 decision in which all 5 votes to overturn the greatest achievement of a Democratic president came from justices appointed by Republican presidents, Roberts may have avoided becoming THAT man.

But as observers on the right and left have noted, he did so in a rather odd way--by effectively agreeing with the dissenters on many of the substantive points, particularly on the matter of the Commerce clause. Some people see this as a stealth attempt by Roberts to set the stage for more significant limitations on the power of Congress in the future.

George Will, for example, argues: "Conservatives won a substantial victory" in the case. Since reformers have used the Commerce clause to expand government power since the New Deal, the argument goes, Roberts has served the larger cause by putting limits on the use of the Commerce clause, which Will, of course, thinks is all to the good.

Pamela S. Karlan, writing in the New York Times, sees the same thing but from the opposite political perspective. Karlan fears that Roberts "laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and Great Society."

In short, the argument is that in exchange for allowing this law to stand (barring a political decision by a future president and Congress to repeal it), Roberts has established the ground work for a revolution in constitutional law that might limit significantly the power of Congress under the Commerce clause.

If this is indeed Roberts' game, then instead of pulling a Dred Scott, he decided to pull a Marbury v. Madison. In the latter, Chief Justice John Marshall ruled against the short-term interests of his political party, the Federalists. As Gordon Wood puts it in Empire of Liberty, Marshall's early tenure as Chief Justice showed "his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court."

Federalists lost the bitter presidential election of 1800 to Thomas Jefferson, but in the lame-duck session of Congress between the election and Jefferson's inauguration, the now-repudiated Federalist majority passed the Judiciary Act of 1801, which outgoing President John Adams signed into law only weeks before he was to leave office. The law was a rather overt power grab--it created new circuit courts, and Adams immediately appointed Federalist judges to them. It was meant to preserve Federalist power in the judicial branch after the party had lost the Congress and the Presidency. In 1802, Jefferson's Republicans repealed the 1801 act.

In the meantime, one of the last-minute judges appointed by Adams, William Marbury, sued to receive his commission, which the new Republican administration had refused to deliver. Marshall was under a great deal of pressure. Federalists wanted him to rule that the Republican repeal of the 1801 act had been unconstitutional. Republicans warned that a blatantly political ruling by a Federalist judge would reveal the partisan nature of the Supreme Court and require Congressional action to rein it in.

Chief Justice John Marshall

Marshall's decision brilliantly solved his problem. He ruled that Marbury had a right to the commission, and that the Jefferson administration had no right to deny it to him.

So, Jefferson lost, right? Not really. Marshall also ruled that Marbury had based his petition for relief to the Court on a provision of the 1789 Judiciary Act, and that provision, Marshall said, was unconstitutional. Thus the Court had no power to order that Jefferson's Secretary of State, James Madison, deliver the commission.

So, Jefferson won, right? Not really. He thought the idea of judicial review was undemocratic, and said that if the Courts alone had the power to rule on constitutionality of laws, it "would make the judiciary a despotic branch." But since he had "won" the case on those grounds, Jefferson was put in the position of accepting--at least indirectly-- the validity of judicial review.

In the short run, Marshall gave the administration a political victory. In the long run, he established the precedent of judicial review, which is not explicitly stated in the Constitution, but is the greatest power the Court has. But not challenging the Jefferson administration directly, Marshall maintained the reputation of the Court and enhanced its power.

The parallels to what Roberts did last week are obvious. He too resisted the pressure of the political party that nominated him to the Court. He too handed that party a short-run defeat. He too (at least somewhat) rehabilitated the Court's reputation.

Whether or not he has also set the stage for a conservative judicial revolution, such as Will hopes for and Karlan fears, depends entirely on future Courts and future decisions.

But Roberts does seem to have decided--at least for now--that he'd rather be Marshall than Taney. We should all be grateful for that. But for George Will's hopes and Pamela Karlan's fears to be borne out, Roberts would have to some day pick up those judicial "weapons" and use them against the New Deal and Great Society.

For the record, though John Marshall effectively created the Court's power of judicial review, he served on the Court for more than 30 years after Marbury v. Madison and never used it to invalidate another law passed by the United States Congress. In fact, no Court used it for that purpose until 1857, when Roger Taney used it in the Dred Scott decision. Hopefully, John Roberts will remember that, too.

Newtpocalypse Now

Just as it seemed like we were about to see the Season Finale of the 2012 Republican race, we got a rerun. Newt is back. Again.

The big question is "why?"

I would like to think that Gingrich's victory was due to the fundamental questions he raised in his attacks on Romney's record at Bain Capital. But everyone who saw the two debates last week knows that it was something else, something much more base and disturbing. Newt didn't win this primary with economic populism.

If Gingrich's victory in South Carolina on Saturday was in fact a Tea Party victory--and it is repeated elsewhere--then we will have to put to rest the idea that that movement is just about taxes and spending. It will be the culture war all over again.

It was, I think, extremely revealing to see Gingrich in victory. For one brief moment at the start, he actually seemed, as he said, "humbled." It didn't last long.

Within minutes, Gingrich seemed to forget he no longer had to demagogue for votes in South Carolina. But that's because the demagoguery he used here during the last week was nothing new. It was vintage Gingrich. You see, he's on a mission to save America.

As I've noted previously, Newt Gingrich is a child of the 1960s. His is not the 1960s of the civil rights movement, the war on poverty, anti-war demonstrations, and the sexual revolution, however, but of the opposition to all of those things.

I thought the most telling lines from his speech were those that clearly referred to Newt's pining for a bygone, pre-1960s, era. He unambiguously dated the start of the decline he proposes to reverse. He attacked the "elites who have been trying for a half century to force us to quit being American and become some kind of other system."

The decline began, in other words, in the early 1960s. In Newt's world, the progressive changes of all the years since amount to an attack on--or even the destruction of--what he calls "the America that we love." The proponents of those changes, he sneered, don't like "classical America."

(Somehow, this does not constitute "dividing" Americans in his book--since, of course, those "others" don't love "the America that we love" and thus are not real Americans.)

This is unabashedly reactionary politics. For all his dabbling in futurism, candidate Gingrich has his gaze fixed firmly on the past.

Nothing Gingrich said better demonstrated how out of touch with modern America he is than his extended ode to the diversity of the current Republican field. "We produce leadership from an amazing range of places," he said. "I watched tonight the fine speeches of the other three candidates on our side and I was struck by how much they reflected the openness of the American system.... You look at the four of us and you see that anyone can come from a wide range of backgrounds."

Think about that for a moment. A 68-year-old white man with a net worth in the millions of dollars, looked around him, saw three other fairly wealthy white men also running for president, and saw diversity, a "wide range of backgrounds." In what world is that true? In the America of the 1950s, of course.

Certainly, there are differences among the four--geographic, religious, economic, etc. Only Romney was born to wealth and privilege. But compare that to the last primary contest in the Democratic Party, that came down to a battle between a white woman and a black man, neither of whom would have been able to vote 100 years ago. That's what diversity looks like in modern America. And Newt's coded message to his supporters was that is not "the America that we love."

The rest of the speech, as others have noted, was a long list of resentments against various kinds of "elites." If it weren't so despicable, I could almost admire how effortlessly Gingrich appeals to bigotry without resorting to the overtly objectionable terms that the progress of the last half century has driven from polite political discourse.

He doesn't use racial epithets, he calls President Obama a "food stamp president" who wants "your children to have a life of dependence." He doesn't call him a communist, he says Obama isn't inspired by American exceptionalism but by "the radicalism of Saul Alinsky" and the ideas of "people who don't like the classical America." And, of course, Obama has "extremist left-wing friends in San Francisco."

This is not about taxes and spending. Those topics were barely mentioned by Gingrich. He has no real answers to our economic woes, other than the tired Republican bromides of cutting taxes and abolishing regulation. So, in the grand old reactionary tradition, he rails against imaginary threats like the "growing anti-religious bigotry of our elites."

That line worked in South Carolina, but will it work outside of South Carolina? Perhaps this state will prove an aberration, and Gingrich's reactionary culture war will not play elsewhere. The answer will be telling.

No doubt, part of Gingrich's strength was due to Romney's weakness. Back in November, before the Republican debate here at Wofford, a CBS News reporter asked me about the contest here:

"If you look at politicians who've done well in South Carolina historically - Strom Thurmond, Jim DeMint - generally speaking, they're people that at least the public perceives as straight shooters," Byrnes said, "I don't think a lot of people feel comfortable that they know who [Romney] is."

I think the results Saturday reflect that fact. Romney, bless his heart, tries to tap some of the same cultural anger and resentment that Gingrich does. Saturday night, he again said that this election is a fight "for the soul of America." But to most voters here (and elsewhere, I suspect), Romney comes across as someone without a soul--or, perhaps, as someone who would sell his soul for the presidency.

By contrast, when Gingrich turned his wrath on Juan Williams and (in the disgusting words of supporters here in South Carolina) "put him in his place," he seemed all too sincere and real.

"I articulate the deepest held values of the American people," Newt solemnly intoned. For anyone remotely familiar with the facts of Gingrich's life, that assertion was jaw-dropping. "Yes, you just don't live them!" is the only reasonable response.

But as I noted last month, Gingrich sees himself as a world-historical figure. His utter shamelessness comes from that conviction. Gingrich holds himself to a different standard. "It doesn't matter what I do," he told his second wife when she called him on his hypocrisy. "People need to hear what I have to say."

He believes he is above conventional morality, because only he can save civilization. He truly believes that. That conviction served him well in South Carolina, particularly when contrasted to Romney's self-evident falseness.

The irony is that the combination of "authenticity" and willingness to place ends over means was typical of the '60s leftist radicals Newt disdains. As George Will nicely put it, Gingrich "would have made a marvelous Marxist." Tactically, he is one.

Gingrich's portrait of Obama is a fantasy, a left-wing mirror image of Gingrich himself. The Manichean divide Newt presented Saturday night exists only in his mind--because, for him, it must exist. His reactionary ideology demands it. He needs Obama to be the embodiment of everything he despises, so that he can save America from disaster.

Last week, David Brooks observed: "I sometimes wonder if the Republican Party has become the receding roar of white America as it pines for a way of life that will never return."

Gingrich's speech last night was the primal scream of that receding roar, and his current rise in the polls suggests that he and what he stands for will not go quietly.