Supreme Myths II: The Roberts Court Years

 By Eric Segall

My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court. 

It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion:

Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental officials should be seriously re-evaluated. Perhaps, having an ultimate veto council is a good idea for a representative democracy whose people believe in limited government. But if so, we should be honest about how the council is structured and actually operates. It is well past time to pull back the curtain on, and then reassess, the Supreme Court of the United States.

I am not here to argue that in the almost ten years since the book was published the Court has been less a court than during the previous two centuries. But I am here to say that the last ten years strongly support the thesis of Supreme Myths. Moreover, because social media have dramatically altered the landscape of reporting on the Court, more and more people actually understand the inherently flawed nature of a governmental institution staffed by people with jobs for life who wield effectively unreviewable power.

The only reason Georgia can't prohibit all abortions (yet), or Chicago cannot bar all handguns (that won't change), or my public university in the heart of downtown Atlanta cannot have a quota of African American students, is because the government officials we call judges but really aren't have said so. That reason should not be good enough, at least until the Justices are honest about the role personal values writ large play in constitutional adjudication.

My book came out a little before the Court decided the landmark Affordable Care Act case, NFIB v. Sebelius. As I wrote here, the decision failed to apply pre-existing law (without explicitly overturning that law) in all of its major holdings. For example, the mandate was obviously constitutional under the commerce clause and the Medicaid expansion was obviously constitutional under the Spending Power, yet a majority of the Court reached the opposite conclusions. Few commentators suggest that prior law played a major role in Chief Justice Roberts's decision to join with the liberals to uphold the mandate as a tax while many Court watchers agree the Chief was mostly concerned with both the Court's and his own legacies--not exactly the stuff discerned from text, precedent, and history.

My book also came out before the disaster commonly known as the anti-voting rights case Shelby County v. Holder. Regardless of whether one thinks prior law supported that decision (it clearly did not), there was no plausible justification for the Court majority to accept Roberts's doctrinal shift in a prior voting rights case, upon which Shelby County relied. In that case, Roberts silently overturned a landmark constitutional holding by using ellipses to reverse the meaning of a hugely important paragraph, so he had more ammunition to strike down Section 5 of the Voting Rights Act. I wrote about that lawlessness here.

Although originalism was obviously an academic focus for many professors in 2012, few people thought that the doctrine played any serious role for the Court as an institution. While Justices Scalia and Thomas talked the talk of originalism, their votes clearly showed they were much more interested in conservative results than a good faith examination of the Constitution's original meaning, as I laid out in this law review article. Today, of course, three Justices--Thomas, Gorsuch, and Barrett--purport to be strict originalists and the discussion of the topic in legal academia has taken on huge importance. My thoughts on that matter are revealed in this book, but the point is that the lack of transparency in the Court's opinions on the question of originalism's true force as a decision-generating device has, in fact, worsened since 2012.

A major new development since 2012 has been the Roberts Court's reliance on what Professor Will Baude has called the "Shadow Docket." The Court for the first time in history has been routinely issuing important and even precedent-changing decisions late at night and on weekends without oral arguments or full briefing. Professor Steve Vladeck has written about this problem in clear-eyed detail. Needless to say, judges should not engage in issuing important national decisions prior to a full vetting of the arguments (absent emergencies). This troubling new development further supports my argument that the Court is not a court.

And so it goes. There are many more post-2012 examples of the Justices not acting like judges in such diverse areas of the law as free speech, the free exercise clause, and non-constitutional torturing of legislative text relating to class actions and arbitration agreements.

Readers of this post might be wondering about my views on same-sex marriage and the decisions in United States v. Windsor and Obergefell v. Hodges given my outspoken advocacy for gay rights. To the extent both opinions rely on substantive due process or unenumerated rights, I don't concur. Windsor, which struck down the federal Defense of Marriage Act, is also based on the equal protection clause but there is no such clause in the Constitution as applied to the federal government (though there should be). It pains me to say it, but I probably disagree with Windsor for that reason. The Justices shouldn't make up constitutional text and principles that do not exist in the text.

As to Obergefell, which overruled over 40 state laws or constitutions banning same-sex marriage, here the equal protection clause of the 14th Amendment has real force. Gays and lesbians are undoubtedly "persons" under the clause, and they were denied all kinds of legal rights by not being allowed to marry. On the other hand, there is no history supporting the Court's decision, But I am a strong believer in text, and I think the words of the equal protection clause justify the Court's decision, albeit it is a close call. In any event, nothing in either case diminishes my thesis that the Court is not a court all things considered.

I also want to say, for progressives reading this, that it is possible to be strongly in favor of gay rights and other ones such as abortion rights, and the one person-one vote rule, without necessarily thinking judges should be the public officials protecting those rights and articulating those kinds of rules.

It would not be hard for me to write Supreme Myths II: The Roberts Court. I am seriously thinking about it. But for now, the last paragraph of Supreme Myths is as accurate today as it was a decade ago:

The Supreme Court should not overturn the new health care law (or for that matter abortion laws, affirmative action laws, gun control laws, or any other law) unless the law is completely at odds with clear constitutional text [or uncontested history behind the text]. 'We the People' have only authorized the Justices to enforce the legal principles contained in the Constitution, not to enforce their personal value judgments on...important disputed questions. We should insist that the Justices act like judges interpreting prior law, not politicians who have the power to override the policy decisions of the elected branches, the states, and the American people.

If you are not sympathetic to my thesis, maybe you should listen to Thomas Jefferson, who understood better than most the dangers of unelected, life-tenured national judges who, to him, had the potential to cause great harm to our country: "The a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." 

Just so.