an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
You see, John Roberts voted to uphold Obamacare by exercising "judicial restraint." Seeing this, Republican voters simply lost faith in the Supreme Court's ability to uphold the Constitution and the Rule of Law. And, as a result, they became raving populists who simply wanted to win at all costs. The stage was set for political craziness. Just add Donald Trump and stir.
As Ilya puts it:
Roberts recognized that the Affordable Care Act was unconstitutional yet still saved it out of a misbegotten devotion to judicial restraint—under the guise of deferring to “the people.” . . . Roberts increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.
The man’s twistifications drove the constitutionalist Tea Partiers into the arms of the populists—or made it easy for their populist instincts to “trump” their constitutional ones (pun unintended, but fitting). Why bother with the Constitution? Even when you’re right, you lose.
Huh? This was what caused Americans to lose faith "in institutions across the board?" Most voters have never read a Supreme Court opinion. They simply have no idea how John Roberts decided the case, or whether his arguments were good or bad, solid or "twistifications," other than being aware of the result. It's very hard to see how legal scholars' outrage at Roberts' use of the constitutional avoidance canon would have sent to the masses the clear signal-- "give up on the Constitution!"-- that Ilya believes it sent.
This is simply a bizarre claim about human psychology, and about the views of the average American voter. It is an especially bizarre claim about the views of the average Republican voter, who cares little for what conservative elites and intellectuals care about.
This disconnect between what conservative intellectuals care about and what Republican voters care about is precisely the reason that Trump succeeded. And Ilya seems not to recognize that fact. Indeed, he displays that disconnect powerfully in the very argument he is making. He projects his own concerns on to those of the average Trump supporter.
There's also the temporal issue. John Roberts writes his opinion in 2010 2012 (Ilya has reminded me of my own temporal derangement!). Donald Trump becomes the presumptive nominee in 2016. What explains this remarkable delayed reaction? Four Six years is a lifetime in American politics. Republicans now control the vast majority of elected offices in the states. Is this also John Roberts' handiwork? Is this also evidence of growing disillusionment with the rule of law?
A better thesis for the rise of Trump would be not that Republican voters felt betrayed by John Roberts, but that voters felt betrayed by Republican politicians who promised that, if elected, they would get rid of Obamacare, and enforce any number of conservative policies. They didn't do the things they promised they would do-- indeed, they couldn't with Obama in the White House. And now the Republican electorate is hopping mad. Not at John Roberts, mind you, but at Republican politicians and Republican intellectuals, who have repeatedly played them for suckers.
I find it hard to believe that, four six years later, it is John Roberts' embrace of judicial restraint and not the failed promises and misleading rhetoric of Republican politicians that have stuck in the craw of the average Trump voter. I find it hard to believe that despair about badly reasoned Supreme Court decisions, and not, say, immigration, trade, and nativist cultural appeals, has been the driving force behind Trump's success.
Ilya, however, does not focus on these possibilities. He argues that until John Roberts engaged in "judicial restraint," the conservative constitutional revolution was almost upon us. It was so close, in fact, that we could almost taste it:
A constitutional moment had actually arrived in 2010. Remember, the people had risen up against crony capitalism, against bailouts and out-of-control government in every aspect of our lives. Real constitutionalists were sent to Congress—Massachusetts even elected a Republican senator in a bid to stop Obamacare—and state legislatures turned red based on opposition to federal overreach.
The last domino, the White House, was poised to fall, too—would have already if any A-list constitutionalist had run in 2012—with the most talented and intellectually vibrant GOP primary field since Ronald Reagan ran unopposed in 1984. But then Roberts ushered in the Trump tornado. Constitutional conservatism simply couldn’t survive judicial conservatism. The genteel Roberts and the vulgar Trump thus have one thing in common: a belief that judges should stop striking down laws and just let political majorities rule, individual liberty be damned.
. . . .
Instead of teaching the people that our republican form of government works, we’re left with the false empowerment of a self-consuming democracy. Comes now our own Peron, leading his modern-age descamisados down the road to a “Great America” that could genuinely have existed if Roberts had only done his job.
I want to put aside for the moment Ilya's remarkable claim that if an "A-list constitutionalist" like, say, Ted Cruz or Rand Paul had run in 2012, he would have defeated Barack Obama, an incumbent president in a mildly improving economic climate. Good luck with that fantasy.
What I really don't get is the argument that, four six years later, John Roberts' opinion in NFIB v. Sebelius somehow caused Marco Rubio, Jeb Bush, Chris Christie, Rand Paul and a dozen other candidates to fail in the Republican primaries. This is a total non-sequitur.
But I get why the non-sequitur is attractive. Libertarian conservatives are still smarting from the result in the Obamacare case. They believe it is a terrible decision and that Obamacare is a terrible law. The rise of Trump is also a disaster for the libertarian cause. Because these two things are both so terrible, they must be connected. One must be the cause of the other.
To which I say: No, one doesn't have to be the cause of the other. This is Trumpian logic. And blaming the failures of conservative politics on John Roberts is just a way of deflecting responsibility for Trump's rise.
Libertarians have thrown their lot in with the Republican Party for some time now. That may have been the best choice given the present configuration of the two major parties. But the rank and file of the Republican Party is not particularly libertarian-friendly, and it has made clear that libertarian policies are not all that important to them.
Libertarians are not the only ones who have been disillusioned. For the past twenty five years, many conservative intellectuals have been swept up in a populist romance, happy to attack liberals for being effete, elite, and out of touch with the views of ordinary people. But now the shoe is on the other foot. Many of the people that conservative intellectuals idolized have turned out to have very different values than conservative intellectuals imagined.
That is the hard reality that both conservative and libertarian intellectuals have to deal with. John Roberts is not responsible for that, and denouncing John Roberts is not going to make that reality go away.
Finally, there is this. If Ilya is correct that Donald Trump really is a Peronist caudillo, if he really is a dictator in waiting, then liberals and libertarians alike should find common cause and unite to stop him. He is a threat to our shared ideals. We should take that threat seriously.
I can think of an obvious way to make sure that Trump doesn't get the most votes in the 2016 election. I hope Ilya can figure it out too.
* * * * *
UPDATE: Orin Kerr connects the dots differently, and there is much to his argument. The fault rests, he explains, with the Republican strategy of delegitimating government and government institutions, including the Supreme Court and its decisions. Ultimately, Republicans convinced their base not to trust anyone, including themselves:
I think the rise of Trump can be partly explained by the politics of
delegitimization backfiring. Conservatives and libertarians used the
strategy to rally the troops. They made it a standard move, and it
became second nature over time. . . . When a large audience is inclined to believe that everyone in government is corrupt, an outsider who excels at the politics of delegitimization can become a powerful political force regardless of his own politics. . . . Public perceptions of what Chief Justice Roberts wrote in Sebelius
may have been a contributing factor — one among many, of course, but
still a factor — in the Republican party turning to Donald Trump. But
that perception was the result of a false narrative designed to
delegitimize Roberts’s decision. To the extent public perceptions of Sebelius
made any difference, the fault for the rise of Donald Trump does not
belong with Chief Justice Roberts. Instead, it belongs with those who
tried to delegitimize the Roberts opinion for their own ends and had it
backfire on them big-time.