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John Roberts will be the new Anthony Kennedy. He stopped short of admitting as much in his recent rejoinder to President Trump, claiming there are no “Obama judges” or other politically motivated federal judges—a statement untrue on its face. But the implication was clear. He has already had a trial run as the swing vote—in the Obamacare case, in which Roberts deserted his fellow Republicans and joined the liberals with a tangled decision that redefined the health insurance law’s individual mandate as “a tax.”
Roberts also was joined by the newest Justice, Brett Kavanaugh (so much for the liberal women clawing at the doors of the court chamber) in a decision supported by the four liberal members of the court. It declined to hear an appeal in a case denying conservative states the authority to defund Planned Parenthood in Medicaid services.
But then, why wouldn’t Roberts want to be the swing vote? It would make him the most powerful man in American government, able single-handedly to change American social, cultural, or political life in historic new directions, as Kennedy did with the same-sex marriage decision.
Roberts would wield his power from an unassailable position: a lifetime term never vulnerable to public vote. Only dictators enjoy such legislative powers. Kennedy could not resist the temptation to power that came with being the swing vote, and Roberts won’t either.
Roberts was a George W. Bush nominee, but Republicans have a long history of Supreme Court appointments who went spectacularly sour for them, including some of the most liberal activist judges in history—Earl Warren and David Souter.
Harry Blackmun, a Richard Nixon appointee, was the architect of Roe v Wade. Sandra Day O’Connor, a Ronald Reagan appointee and the first woman on the court, was supposed to be an Arizona conservative. She ended up voting with the liberal bloc. Souter, about as far left as you could go in liberal activism, was nominated by the George H. W. Bush. Anthony Kennedy was another Reagan appointee, but he saved Roe, and cast the deciding vote in granting same-sex marriage rights. In doing so, he created the 4-1-4 configuration of the court, with himself in the middle on many issues.
This put Kennedy in the position of being the wise man, the compassionate sage, above the fray where he could exercise a higher spirituality, expressed in such gobbledygook sentences as this one: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”
The power may be irresistible, but how did it come to be? Anyone who reads Article III of the Constitution can see that it is not there at all: no judicial review, no authority to overrule Congress or the states, no legislative powers, no superiority over the other branches of the federal government. In fact, quite the opposite.
The three branches of government are not separate but equal as so many commentators insist. They were meant to be separate, but not equal. Congress was far and away the great power, followed by the president, with the courts in a weak third place. They were “the weakest of the three departments of power,” wrote Alexander Hamilton in Federalist 78. They were “the weakest because weakest in capacity,” he wrote, adding a quote from Montesquieu, an architect of tripartite government, “of the three powers above mentioned, the Judiciary is next to nothing.” Hamilton also made it clear that “there is no liberty, if the power of judging be not separated from the legislative…”
At the 1787 Philadelphia Convention, the framers twice voted down a veto power over congressional law by the courts. They did grant such a veto to the president, but added a check and balance by making it possible for Congress to override a presidential veto. Had they granted a veto to the courts, there surely would have been a check and balance. Yet today the courts enjoy an unchecked veto power not only over Congress but over anything and everything.
The Supreme Court today essentially is a judicial dictatorship which can amend the Constitution the easy way, by a 5-4 vote. (The hard way is the path everyone else has to follow—a two-thirds majority in both houses of Congress and approval by three-quarters of the states).
Historically, this extraordinary judicial-legislative power comes from the unilateral seizure of it by Chief Justice John Marshall in the famous Marbury v. Madison case of 1803. The case was of minimal importance, but the implication for the future was ominous. This illegal power wouldn’t be used again until the disastrous pro-slavery Dred Scott decision of 1857, which helped bring on the Civil War by overruling Congress on its hard-earned extension of slavery laws.
Abraham Lincoln brilliantly explained the limits of the Dred Scott decision, but no president since has had the courage to defy the courts when it comes to the use of “judicial review,” the mechanism by which courts nullify laws of the people, write new laws of their own, and impose them on the entire nation. John Roberts will be the new pilot of these flights of judicial review. Count on it.
Photo credit: Tom Williams/CQ Roll Call