As President Donald Trump sweeps the law aside,
indiscriminately firing government employees, closing agencies and departments,
pressuring law firms and universities, and seizing people residing lawfully in
the country without due process, the nation’s eyes have turned to John Roberts.
Surely, the chief justice of the Supreme Court, guardian of institutional
legitimacy, will draw a constitutional red line, writes George Thomas in a book review for the Washington Monthly.
Yet Trump has thus far governed on the opposite
assumption—that the Roberts Court won’t stop him—and he has good reason to
believe as much. Nowhere is this clearer than in Trump v. United States,
the presidential immunity case decided last year. Roberts overlooked what was
in front of his nose, the January 6 assault on the Capitol, and instead penned
an opinion that on its face immunized presidents against legal responsibility
if they were engaged in “official acts.” Roberts insisted that this was
necessary, lest presidents be afraid to make the tough decisions that often
fall to them. For a Court that so frequently turns to history, one had to
wonder just what history the Court was looking at. Presidents in the second
half of the 20th century, even after Watergate, have not exactly been shy about
claiming sweeping official power.
Trump seems to have taken the ruling’s central lessons to
heart: By way of executive order, clothing his action with the veneer of an
“official act,” he has asked the Justice Department to open an investigation
into Christopher Krebs, his former director of cybersecurity, for telling the
truth to the American people. As Trump was lying about the 2020 election
results, and falsely claiming election fraud and interference, Krebs, doing his
job, insisted that, according to the evidence, the 2020 election was free and
fair. For this, Trump is attempting to use the power of his presidency to
punish Krebs.
Should the chief justice be surprised? Is he surprised that
Trump might ignore the Supreme Court and disregard the niceties of the
Constitution? What will the Court decide with regard to the president’s
blunderbuss tariffs, his shipping of people out of the country without due
process, and his firing the heads of independent regulatory agencies without
cause?
Leah Litman gives us good reason to doubt that the Roberts
Court will hem Trump in. Indeed, her new book, Lawless, seeks to
demonstrate that this Court was constructed to advance a Republican agenda.
When Justice Antonin Scalia passed away at the beginning of an election year,
then Senate Majority Leader Mitch McConnell refused to hold a confirmation vote
for Barack Obama’s Supreme Court appointee. Yet when Justice Ruth Bader
Ginsburg died with early voting already underway in the 2020 election,
McConnell muscled Justice Amy Coney Barrett’s confirmation through the Senate.
Politics over rules. If Litman is right, there is little hope that the Court
will tame a lawless administration; because it is driven by “conservative
grievance,” not law.
A professor of law at the University of Michigan, former
clerk to Justice Anthony Kennedy, and cohost of the hit podcast Strict
Scrutiny, Litman is writing for fans, not to persuade perplexed Court
observers. Each chapter is contrived around pop culture references, like “The
Ken-Surrection of the Courts” and “The American Psychos on the Supreme
Court”—the former referring to the Barbie movie and the Court’s
rollback of women’s reproductive rights, and the latter referring to Christian
Bale’s character in American Psycho and the Court’s “murder” of the
administrative state. Lawless is filled with casual snark: “Okay, but
that’s just like your opinion, bro(s)”; “Come on!”; “Maybe that is true … On
Mars”; “Duh!”; and “O RLY?” Litman fans—and there are many—will love it. As an
occasional listener to Strict Scrutiny, which is both insightful and
entertaining, I found the snark somewhat distracting and juvenile.
It’s too bad. Litman has a serious argument here: We should
understand the Supreme Court as part of the Republican coalition, undoing wide
swaths of law to advance the party’s political agenda. She is at her most
compelling when illuminating how the Court’s opinions are part of this larger
political and constitutional project, not isolated instances of constitutional
interpretation. Consider the Court’s Dobbs decision, which
overturned Roe v. Wade. There are long-standing jurisprudential
criticisms of Roe, some of which can even trace their lineage back to
Justice Ginsburg. Yet what Litman illustrates is that overturning Roe was
part of a conservative vision that goes beyond reproductive rights. Abortion
rights, as Litman argues, symbolized “feminism and feminists,” and Republicans
sought to roll back advances in gender equality, which many saw as an attack on
the family. William Rehnquist, as a young lawyer in the Nixon administration,
insisted that outlawing sex discrimination would lead to the “dissolution of
the family.” Samuel Alito similarly opposed changes that would bring women to
Princeton, criticized the availability of birth control, and, as a young lawyer
in the Reagan administration, argued for overturning Roe. Alito got his
wish three decades later when he authored Dobbs.
Dobbs is not disembodied jurisprudence that exists
outside of politics. For Litman, it is part of a larger political effort to
reject gender equality. This attitude—grievance, as Litman has it—is manifest
in J. D. Vance’s quip about “childless cat women” or that women who do not have
children are “sociopathic” and “shouldn’t get nearly the same voice” in
politics as people with children. Dobbs is the opening salvo: Birth
control, giving women the ability to make fundamental choices about family and
careers, has come under attack in Republican-controlled states. Litman observes
similar moves regarding LGBTQ rights, and highlights the Republican Party’s
2016 platform, which called for justices who would overrule not just Roe but Obergefell—the
2015 decision finding state laws that prohibited same-sex marriage
unconstitutional—as well.
Even the Supreme Court’s jurisprudential approach, relying
on history and tradition, neglects gender. As Litman writes,
Originalism supports a political project of taking away
rights from groups that were not always included in American politics and
society. It effectively maintains that a group possesses rights today only if
the group possessed those rights in laws that were enacted in the 1700s or
1800s.
When the Fourteenth Amendment was ratified in 1868, women
had few legal rights even within marriage, did not have the vote, and were
prohibited from professions like law simply because they were women. As the
Court put it in 1873,
The natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations of civil
life. The constitution of the family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the domestic sphere as
that which properly belongs to the domain and functions of womanhood.
Conservatives, some of whom have called for a “manly
originalism,” as Litman helpfully reminds us, would undo gender equality as we
know it. We are already witnessing tragic instances of women dying because
abortion restrictions prohibit them from getting the medical care they
need.
Litman has a similarly powerful argument when it comes to
the Court’s voting rights decisions. As a young lawyer in the Reagan
administration, Roberts “produced memo after memo outlining objections to
expanding the VRA,” drawing on opinions written by Rehnquist, for whom he had
clerked, to narrow the reach of the act. When Roberts was situated in the
center chair himself, his Shelby County opinion began a rollback of
federal voting rights enforcement. Under Section 4 of the Voting Rights
Amendment, states that had engaged in racially discriminatory practices in the
past had to get federal approval before changing their voting rights laws.
Roberts found this unconstitutional because it rested on outdated information.
But the result was telling: States that were once part of the confederacy began
altering their election laws in ways that disproportionately made it more
difficult for racial minorities, particularly Black people, to vote. We do not
have to think that this is Jim Crow II to find the pattern deeply
disturbing.
Yet past Supreme Courts—the New Deal and Warren Courts—also
have roots as part of political coalitions. And these courts also instituted
profound changes to constitutional law, setting aside precedents and offering
novel constitutional understandings. Is the Roberts Court different on this
front?
At times, yes. Most notably, given Litman’s argument, the
New Deal Court was in line with a large governing majority, and even the Warren
Court, which is viewed too often as an anomaly, was embedded within the
coalition of Kennedy-Johnson liberalism as it brought the white South into line
with the rest of the country. Partly in contrast, the Roberts Court is
supported at best by a slim plurality in a deeply divided country, and its
decisions—overturning Roe, for instance—are often out of line with
democratic sentiment. Plus, the current Court relies heavily on text and
history but does so in a highly selective manner. On gun control and abortion
rights, for instance, the Court has embraced a view of history that confines
our understanding of the Fourteenth Amendment to the middle years of the 19th
century. Yet confronted with whether Donald Trump had disqualified himself for
office under Section 3 of the Fourteenth Amendment by instigating January 6 and
the events around it that tried to keep him in power, the Court had little
interest in history or original meaning. It would have been momentous to remove
a presidential candidate from the ballot, and there was at least some reason to
doubt that Trump had engaged in an insurrection under Section 3’s terms, but
the Court simply neglected these foundational questions.
The Roberts Court is sweeping away well-established law
based on a theory of the separation of powers that finds little grounding in
constitutional text, history, or precedent.
Supreme Court opinions always raise contingencies and
qualifications, but Litman demonstrates how the current Court too often leans
into Republican causes. And they do so even if it requires dismantling the
jurisprudential legacy of their judicial icon—Justice Scalia—on issues like the
free exercise of religion. Here the Court has begun to insist not only that the
establishment clause allows the states to directly fund religious institutions,
but also that the free exercise clause commands it. Such an understanding finds
little grounding in history or original meaning, and would have baffled James
Madison, but it has become part of a conservative insistence that Christianity
is prone to persecution in contemporary politics.
Litman also chronicles how the Court has acted on
long-standing Republican goals to limit the power of administrative agencies:
overturning precedent which held that courts should defer to an agency’s
reasonable interpretation of a statute when it was ambiguous; demanding that
agencies show clear intent on the part of Congress if their regulations engage
“major questions”; and questioning whether Congress is even allowed to delegate
its power to agencies in the first place. These developments have limited the
reach and power of executive branch agencies, placing that power instead in the
hands of courts. Litman goes so far as to say the Supreme Court has “murdered”
the administrative state. More compellingly, she insists that the Court is
sweeping away well-established law based on a theory of the separation of
powers that finds little grounding in constitutional text, history, or
precedent. This is particularly true of the idea of non-delegation—that
Congress cannot delegate its power to administrative agencies housed in the
executive branch. The Court seems determined to revisit this issue, which could
dismantle the administrative state and, notably, lead to widespread
deregulation, which accords with the desires of leading Republican
donors.
If the Court has hemmed in administrative power, it is set
to unleash the power of the president by way of “unitary” executive theory. The
idea of the unitary executive is that the president gets complete control over
the executive branch, including the power to remove government officers for any
reason he sees fit. Does this mean that the president has control over all
administrative agencies, including independent regulatory agencies like the
Federal Reserve? Founding-era history does not even begin to support such
claims. The first great discussion about removal, the Removal Debate of 1789,
found arguments on all sides. Indeed, Alexander Hamilton, deemed the father of
the unitary executive, insisted in Federalist 77 that the president
needed Senate approval to remove officers as well as to appoint them. If we
have settled on the precedent that presidents can remove political officers, we
have also settled on the fact that Congress can insulate some officers that
head independent agencies from presidential control.
Trump wants to overturn this settlement. The White House has
fired an extraordinary number of government employees, including lawyers who
resisted Trump’s edicts in the name of the law. In Trump v. Wilcox, the
president has asked the Court to endorse his constitutional authority to remove
the heads of independent agencies at will. If the Roberts Court agrees, it
would sweep away nearly a century of constitutional law and vest the president
with kingly power to go along with the kingly immunity it has already
bequeathed him. It remains to be seen whether the putative institutionalist
John Roberts can assemble his Court to preserve institutions against this
constitutional assault. Litman gives us reasons to be skeptical, and she is
right to remind us that preserving constitutional institutions depends on
political movements that work over the course of years. That is the struggle we
find ourselves in today.
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