The Roberts Court's Republican Party Constitution

Over the years on this blog, and in my books, articles, and essays, I have tried to convince readers that text, history, tradition, and precedent do not matter to the justices of the Supreme Court anywhere near as much as their personal ideological visions for America. This critique applies to both sides, but there are currently six Republicans on the Court with an agenda to further the interests of the Republican party, not the rule of law. The symbiosis between the Roberts Court and GOP values has been the consistent pattern of the Court’s cases since 2005-2006, when Chief Justices Roberts replaced Chief Justice Rehnquist and Justice Alito replaced Justice O’Connor.

The state of the law in 2005 on the most important and difficult questions of constitutional law compared to the current rules governing these issues demonstrates that the Republican party agenda is much more important to the Roberts Court then any alleged open-minded evaluation of relevant text, history, traditions, and precedent.

Below, I discuss a wide variety of controversial constitutional law issues that divide our two political parties and compare the state of the law in 2005 to today in the context of the 2008 GOP political platform (and in one case the 2012 platform). Except for same-sex marriage, the Court has almost completely redone constitutional law in the GOP's image. That shift has been intentional, partisan, and mostly lawless. Politics, not law, changed America.

Ironically and comically, the GOP 2008 Platform says this about judges: 

Judicial activism is a great threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the constitution and separation of powers, and imposing their personal opinions on the public. This must stop.

Uh huh.

1. Abortion

    In 2005, states could not place an undue burden on women seeking abortions. Today, states have virtually unlimited power to regulate and prohibit abortion under the permissive and deferential rational basis test.

GOP 2008 PLATFORM:

At its core, abortion is a fundamental assault on the sanctity of innocent human life. Women deserve better than abortion. Every effort should be made to work with women considering abortion to enable and empower them to choose life.... We oppose using public revenues to promote or perform abortion and will not fund organizations which advocate it. We support the appointment of judges who respect traditional family values and the sanctity and dignity of innocent human life.

This condescending attitude towards women and the resulting attack on reproductive freedom has been completely affirmed by the Roberts Court.

2. Guns

In 2005, there was no federal constitutional right to own guns derived from the Second Amendment unless possibly you were part of a state militia. Today, the private right to own guns is strongly protected and often connected, for bizarre reasons, to the importance of the First Amendment. District of Columbia v. Heller had been recently decided when the GOP 2008 platform was released. Here is what it says about guns:

We uphold the right of individual Americans to own firearms....We applaud the Supreme Court's decision in Heller affirming that right....We call on the next president to appoint judges who will similarly respect the Constitution. Gun ownership is responsible citizenship, enabling Americans to defend themselves, their property, and communities.

We condemn frivolous lawsuits against firearms manufacturers, which are transparent attempts to deprive citizens of their rights. We oppose federal licensing of law-abiding gun owners and national gun registration as violations of the Second Amendment. We recognize that gun control only affects and penalizes law-abiding citizens, and that such proposals are ineffective at reducing violent crime.

Note: there are over 400 million guns in America. The inability to regulate them effectively is what the GOP wants and what the Court has helped it accomplish resulting in terrible tragedies.

3. Affirmative Action

In 2005, colleges and universities could use racial preferences in admissions if those schools satisfied the justices' non-originalist, atextual, and counter-historical imposition of a watered-down strict scrutiny test which was nonetheless stricter than text or history supported.

Today, the relevant standard is a much stricter but still non-originalist, atextual, and counter-historical: a color-blindness principle that effectively dooms racial considerations in admissions nationwide.

GOP 2008 PLATFORM 

We reject preferences, quotas, and set-asides, whether in education or in corporate boardrooms. The government should not make contracts on this basis, and neither should corporations. We support efforts to help low-income individuals get a fair shot based on their potential and merit, and we affirm the commonsense approach of the Chief Justice of the United States that the way to stop discriminating on the basis of race is to stop discriminating.

The Chief won, of course.

4. Religion

In 2005, the Establishment Clause of the First Amendment still had some force if the issue concerned religious symbols on government property, the funding of religious schools with tax dollars, and prayers at school and government events, at least in the lower courts.

Almost twenty years later, the Roberts Court has completely abandoned the Establishment Clause as a limit on government power despite deciding many cases implicating strong Establishment Clause concerns, such as a town holding exclusively Christian prayers at legislative meetings, Maryland allowing and maintaining a huge cross on public property, and a coach who liked to pray at the 50-yard line after high school football games (surrounded by students).

In 2005, the Court rarely used the Free Exercise clause to strike down laws because of the Smith decision, and most of the cases involved the federal Religious Freedom Restoration Act (RFRA). (There are state versions of RFRA, but the US Supreme Court doesn't rule based on them, because they present state law issues). Additionally, state governments were allowed to provide generally available aid to religious schools but they were not required to do so if they did not want to because of Establishment Clause concerns (or parallel concerns under state constitutional requirements of church-state separation).

Today, the Court is close to reversing Smith (it has already been minimized), and in three cases has created out of whole cloth a requirement that if states financially help secular private schools, they must provide the same aid to religious schools. When states raised Establishment Clause concerns in all three cases, the Court's reaction was effectively: too bad, so sad; those concerns are illegitimate.

2008 GOP Platform

Our Constitution guarantees the free exercise of religion and forbids any religious test for public office, and it likewise prohibits the establishment of a state-sponsored creed. The balance between those two ideals has been distorted by judicial rulings which attempt to drive faith out of the public arena....We affirm every citizen's right to apply religious values to public policy and the right of faith-based organizations to participate fully in public programs without renouncing their beliefs, removing religious objects or symbols, or becoming subject to government-imposed hiring practices.  

 Mission accomplished and a whole lot more.

5. The Death Penalty

While the Rehnquist Court was no friend to those seeking to prevent the imposition of the death penalty, the Roberts Court has taken hostility towards persons challenging capital sentences to outrageous levels, including allowing (what is effectively) the torture of people being put to death and imposing enormously difficult procedural bars on claims of ineffective assistance of counsel and other defects.

2008 GOP Platform

Courts must have the option of imposing the death penalty in capital murder cases and other instances of heinous crime, while federal review of those sentences should be streamlined....

Again, mission accomplished. 

6, Voting Rights

In 2006, the Congress reauthorized the Voting Rights Act by a unanimous vote in the Senate and an overwhelming vote in the House; the law was strongly endorsed and signed by President Bush. The law had been upheld by the justices on numerous prior occasions. It required, among other things, that states with histories of voter suppression had to justify election changes to three judges in D.C. or the DOJ to ensure that those changes, like voter ID requirements, not unduly disadvantage minority voters.

In 2013, the Roberts Court infamously gutted that major part of this urgently needed and important law. Although the 2008 platform does not mention the Voting Rights Act (probably because no one dreamed the Court would tear it to shreds), the document did say the following:

Preventing voting fraud is a civil rights issue. We support the right of states to require an official government-issued photo identification for voting and call upon the Department of Justice to deploy its resources to prevent ballot tampering in the November elections. We support efforts by state and local election officials to ensure integrity in the voting process and to prevent voter fraud and abuse....

This focus on nonexistent voter fraud, rather than efforts to increase the franchise for everyone, is a major hallmark of the Roberts Court. 

7. Separation of Powers/Administrative Law

In 2005, the Court's separation of powers jurisprudence was a back-and-forth between formalist and functionalist decisions with the justices sometimes erring on the side of avoiding the slide towards tyranny and at other times approving new mechanisms to make the national government more efficient.

Since 2010, the Roberts Court has issued formalist decision after formalist decision regarding who is a principal officer requiring Senate confirmation, under what conditions Congress may limit the President's ability to fire federal officers, and what are approrpriate limits on congressional delegations of power to the Executive Branch. In short, the Roberts Court has dramatically altered the law of separation of powers to make it much for harder for executive agencies to do their jobs and enact meaningful regulations.

The 2012 Party Platform says the following:

The proper purpose of regulation is to set forth clear rules of the road for the citizens, so that business owners and workers can understand in advance what they need to do, or not do, to augment the possibilities for success within the confines of the law. Regulations must be drafted and implemented to balance legitimate public safety or consumer protection goals and job creation.

We salute Republican Members of the House of Representatives for enshrining in the Rules of the House the requirement that every bill must cite the provision of the Constitution which permits its introduction. Their adherence to the Constitution stands in stark contrast to the antipathy toward the Constitution demonstrated by the current Administration and its Senate allies by appointing "czars" to evade the confirmation process, making unlawful "recess" appointments when the Senate is not in recess, using executive orders to bypass the separation of powers and its checks and balances, encouraging illegal actions by regulatory agencies from the NLRB to the EPA,   

The bottom line on regulations is jobs....We call for a moratorium on the development of any new major and costly regulations until a Republican Administration reviews existing rules to ensure that they have a sound basis in science and will be cost-effective.

These arguments have been incorporated by the Roberts Court as constitutional limits on laws enacted by Congress and signed by the President. However one defines judicial activism, the Roberts Court's anti-regulatory agenda is it on steroids.

I could go on and on, but this is a blog post, not a law review article. The Republican Party's antipathy towards abortion, affirmative action, and the Establishment Clause has been ratified by the Roberts Court as constitutional law while Free Exercise concerns, gun rights, and uber-formalism to limit government regulation have all been adopted by the Roberts Court, just as the authors of the GOP platforms wanted.

And, as I demonstrated here, the most important cases decided in last year's momentous term, while not anticipated by GOP platforms (there was none in 2020), were decided with a laser-like focus on helping the Republican Party this November.

Has the Roberts Court done everything the GOP wants? Of course not. The GOP’s desire to destroy the entire ACA and prohibit same-sex marriage are the two most prominent examples (although the justices did hobble the ACA dramatically and make much GOP inspired law in the decision). But those cases were decided before the beginning of the 6-3 supermajority the Republicans now have on the Court thanks to the smashing of nomination norms by the Republican Party. Had this line-up been around in 2012, the ACA would likely not exist and there is no chance same-sex marriage would be constitutionally protected.

But, of course, there is still plenty of time for all that.

Stay tuned.