It’s September 2005, Bush is president, and John Roberts is surrounded by senators. His polka-dotted red tie and light blue eyes pierce CSPAN’s cameras as he begins the opening statement of his Supreme Court confirmation hearing.
“Judges,” he says, “are like umpires. Umpires don’t make the rules, they apply them. The role of a judge and an umpire is critical… but it is a limited role.” He goes on to discuss his encounters with the beauty of our constitutional system and his gratitude that, unlike those governed by “the Soviet Constitution,” our rights are not empty promises.
Before moving on to address his boyhood in Indiana, Roberts closes his metaphor with all the folksiness expected of a Hoosier: “I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
Oh yeah? Well, it’s my job to call bullshit.
Fast forward nine years. Chief Justice Roberts is presiding over the case NFIB v. Sebelius, better known as the Supreme Court’s Obamacare decision. Proponents of the Affordable Care Act had defended the law by invoking the Constitution’s Commerce Clause, which gives Congress the power “to regulate commerce… among the several states.”
But Roberts doesn’t buy this justification. In his eyes, Obamacare—which requires people to have health insurance policies or otherwise pay a fine—isn’t regulating commerce. It’s forcing it.
At the same time, though, Roberts understands how high the stakes of Sebelius are. For decades, the U.S. had been in a harrowing healthcare crisis, and a democratically elected Congress had finally devised a solution. If the Affordable Care Act were struck down, millions of Americans would suffer.
So, on June 28, 2012, Roberts joins the left-leaning justices in a 5-4 decision to uphold Obamacare.
True to his original constitutional convictions, Roberts’s opinion rejected the idea that the ACA was allowable under the Commerce Clause. Instead, Roberts cited the Constitution’s Taxing and Spending Clause, which, predictably, gives Congress the power to tax the American people and spend the tax dollars it raises. By framing Obamacare as a tax on not having health insurance (rather than a requirement to have it), Roberts put one of the Constitution’s most rigid provisions through back-breaking gymnastics. Conservative commentator Ilya Shapiro called this move “the Great Alchemist’s transmogrification.”
A traditional understanding of Supreme Court practice would suggest that what happened during Sebelius was simply an act of interpretation. After a thorough cleaning of his specs, Roberts was finally able to see what the Constitution had said all along.
But that isn’t what happened. In reality, the Alchemist’s opinion in Sebelius was an act of rationalization, a pretext for the decision he knew was morally right—or at least politically necessary. Many conservatives, namely those who touted Roberts’s originalism back in 2005, saw it this way as well, arguing that Roberts wasn’t acting as an umpire, but as a home-run hitter.
These critics wrote off Roberts’s decision as an exceptional instance of judicial activism. This, they insisted, is not what the Court does.
But these critics are wrong. This is exactly what the Court does.
Conservative criticism of Roberts’s decision is based in a classical understanding of the Supreme Court’s role. Storybook history tells us that the Founders designed the Supreme Court as an Interpreter, not a Creator (or, at least, that the Court became an Interpreter when John Marshall invented judicial review in Marbury v. Madison). Accordingly, we select judges who we believe can effectively discern what the Constitution has always said.
But this notion of a mapmaking Court, rather than a world-building one, is fictitious. Roberts’s backflips in Sebelius reveal gaping holes in this fantasy. And a more comprehensive view of Supreme Court history undermines it completely.
In the 1986 case Bowers v. Hardwick, the Supreme Court faced the question of whether gay adults have a right to engage in private, consensual sex. Although pro-gay advocates put forth a number of Fourteenth Amendment due process arguments, the Court didn’t find a single one of them compelling. But in 2003, when the Court was faced with the same question in Lawrence v. Texas, the justices decided the opposite, citing the unchanged text of the Fourteenth Amendment’s due process clause.
Even earlier, in 1949, the Court decided in Wolf v. Colorado that, despite strong Fourth Amendment arguments, states couldn’t be stopped from using illegally obtained evidence in trials. But twelve years later, in Mapp v. Ohio, the Court said that to read the Fourth Amendment as permitting the use of illegally obtained evidence was “worthless and futile.”
These stark changes in jurisprudence weren’t the products of apolitical, interpretive evolutions. They were the results of explicitly political revolutions.
Between Bowers and Lawrence, the number of organizations advocating for gay rights in the U.S. increased more than tenfold, and openly gay men and women entered the public eye in unprecedented numbers. Activists shifted the cultural climate so successfully that numerous state and local governments—ones which, decades earlier, had upheld laws against “homosexual conduct”—passed statutes banning discrimination on the basis of sexual orientation.
A similar process transpired in the years between Wolf and Mapp, when civil rights activists spotlighted the inhumanity and racial bias of the criminal justice system. They argued that Black defendants were systematically denied fair trials and deprived of their rights to legal representation, fairly selected juries, and protection against unreasonable search and seizure. They brought ideas like police accountability and public defense to the fore.
These shifts in social consciousness weren’t effects of Lawrence and Mapp; they precipitated Lawrence and Mapp. With this history in view, a more substantive picture of the Court’s role emerges: Like gatekeepers for modernity, the justices are responsible for deciding when We the People are ready to change. “Interpretive differences” are, then, not merely a matter of text, but of threshold: How much social change ought to justify a shift in jurisprudence?
It’s certainly possible to recast this reality of changing social mores in the language of interpretation. In fact, we’ve done it quite well. Every time the Senate holds a hearing on a judicial nominee, the American public is re-indoctrinated. A new set of cobalt eyes and crimson polka dots (“Boy, wouldn’t he just look right in a black judge’s robe?”) convince us anew of the legitimacy of the originalist-pragmatist axis, whereon justices appointed by Democrats argue with justices appointed by Republicans about just how immutably-dark-black the words of the Constitution are (or are they kind of grey?).
Really, these debates, like Roberts’s Sebelius opinion, are a pretext. They enlist the U.S.’s growing common law apparatus, the ever-lengthening ledgers of clerks and archivists, in the tiresome work of squeezing, shoving, and tucking—that is, shrouding the justices’ moral decisions and political calculations in ill-fitting, apolitical rhetoric. It’s a charade, undertaken just so We the People can continue believing that Supreme Court decisions are really ours. The idea that these decisions flow unimpeded from a document We created, or at least that We have the right to alter, allows us to separate ourselves from the ugliness of past misinterpreters.
In reality, the Supreme Court is not an extension of our democratic building blocks. It is an exception to them. It is an unelected, virtually unimpeachable body drawn from the upper crust of Harvard, Yale, and Columbia law schools. It is oligarchy.
Of course, the Constitution provides some guardrails, vague limitations on what the justices can “read” into existence. But within those bounds, anything can happen.
I don’t mean to assert that this state of affairs must be remedied. On the contrary, many attempts to do so—namely, elected state judgeships, which make courtroom benches just as campaign-obsessed as legislatures—often lead to gross distortions of justice.
We ought to acknowledge that the American experiment is not one in absolute democracy. Rather, it’s an experiment in that least sexy of all paradigms: moderation. Our collective decision-making power is not equally distributed, but suspended between ourselves and the justices who are supposed to know better than we do. We’re sustained by that tension, not by either of its component forces.The rule of the people is a pure ideal, a sort of ever-guiding North Star, but it isn’t our reality. Of course, a middle-of-the-road ethic feels less worth standing and pledging for, and far less worth fighting and dying for, than pure democracy. But this less romantic view of our government, of what it means for something to be constitutional, is worthwhile. It allows us to rise above the misdeeds of our past, the imperfect ideologies that the Founders championed and the masses embraced, rather than retroactively rewriting our history. It allows us to see that the country buried beneath the pretext of majoritarianism, the legend of an always-present constitutional truth, is us. Its history is made of all the things we’re made of—mixedness, equivocation, contradiction, regret.