DANIEL VAUGHAN: John Roberts and the left’s institutionalism argument

March 11, 2019

A new biography of Supreme Court Chief Justice John Roberts by CNN legal analyst Joan Biskupic has kicked off a debate over whether liberal lawyers are trying to sway the chief justice toward their side in significant cases.

The left’s focus has shifted from living constitutionalism, or liberal originalism, to legal arguments relying heavily on the notion of institutionalism. Their goal, as summarized by Biskupic, is to make Roberts “torn between two, often divergent, priorities: to carry out a conservative agenda, and to protect the Court’s image and his place in history.”

The left is portraying a conservative move by the court to be one that challenges the legitimacy of the court in a severe way that harms the very legitimacy of the Supreme Court as an institution.

The driving impetus behind this push by the left is Roberts’ opinion upholding the constitutionality of the Affordable Care Act under Congress’ taxing power. Biskupic confirmed long-rumored thoughts in legal circles: Roberts began that case ready to strike the law down as unconstitutional.

According to The Atlantic:

Biskupic, who interviewed many of the justices for this book, including her subject, writes that Roberts said he felt “torn between his heart and his head.” He harbored strong views on the limitations of congressional power, but hesitated to interject the Court into the ongoing health-insurance crisis. After trying unsuccessfully to find a middle way with Kennedy, who was “unusually firm” and even “put off” by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.

Why did Roberts have this change of heart? No one knows, and in her book, Biskupic only offers conjecture. But liberal legal commentators have decided that the reason Roberts made this choice was his concern over the long term legitimacy of the Supreme Court.

The issue has started popping up as a conference topic for Federalist Society events. One of the most recent was at an event in Florida: two liberal lawyers spent their time arguing that 5-4 decisions wherein conservatives overturned precedent would seriously harm the Supreme Court as an institution. They further claimed that to overrule precedent would show a high degree of arrogance, and that justices would be saying that they’re smarter than all their prior predecessors.

This argument by the left is a Hail Mary pass by a legal movement coming to terms with the fact that they lack any cohesive reasoning to combat a conservative turn for the court.

The shift of legal reasoning toward a form of living constitutionalism that allowed justices to find whatever they wanted in the text was what led to the court becoming so political. The point of originalism — to interpret the law as it is, not as what you want it to be — is the best form of institutional protection that exists.

Relying on originalism and textualism means that judges are dealing directly with the text in front of them and trying to bring cases in line with the goals of the legislative branch. No statute or law is perfect, and controversies are bound to occur.

Originalism sets judges up as impartial umpires who don’t push any particular policy. Or, as Justice Antonin Scalia put it:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

A court that focuses on the text automatically keeps the institutionalism of the Supreme Court strong, as lawyer David French notes:

At the most basic level, originalism is institutionalism. Originalism places the institution of the Supreme Court (and Article III courts more broadly) in its proper constitutional place. It subordinates the Court by elevating the text of the Constitution and the text of the laws the Court interprets. It allows citizens to impact government not through the fraught, decades-long process of replacing life-term judges, but by the more immediate and democratic process of changing statutes.

If the chief justice focuses on maintaining an originalist stance on the court, the institutional issue will take care of itself. The left may argue otherwise, but they’re doing so not out of fidelity to the Constitution, but because adhering to originalism doesn’t get the results they want from the text.

The 20th century saw a Supreme Court that diverged from honoring the text of the constitution to taking a more policy-based approach. That divergence harmed the Supreme Court as an institution — not any one case like Roe vs. Wade.

Single cases may swing public opinion, but the powers the court used to get there matter more. Reining in those powers and applying originalism will do more for institutionalism than any case or precedent.

Perhaps more telling is the implicit threat in the left’s argument: from here on out, if the Supreme Court doesn’t rule how they want, regardless of the legal arguments underpinning it, they’re prepared to say the Supreme Court is an illegitimate institution.

That’s more dangerous than any opinion John Roberts will write this term or any in the future.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.