Harold A Black
I got a call from a friend who is a “progressive” wondering what I thought of the Supreme Court ruling on presidential immunity. I told her that I had no opinion. She was surprised. I have always felt that the justices on the Supreme Court should be legal experts and interpret the Constitution given their legal expertise. I am neither a legal expert nor a student of the Constitution. I may agree with a particular ruling. I may disagree with another ruling. But my opinions come from my personal beliefs, standards, morals and biases rather than a lifetime of reading the law. Few ask the question “why are there so many Christian denominations” or “why are there so many different interpretations of the Bible.” Is there only one correct religion? Is there only one correct reading of the Bible? Is there only one correct reading of the Constitution?
I always ask if a justice is consistent or does the justice wander all over the place? Clarence Thomas is the most consistent justice with regard to a literal reading of the Constitution. Sonia Sotomayor’s rulings appear to be based on emotion rather than on legal grounds. Look at the opinions of Justice Gorsuch. Few question his intellect or scholarship. But Gorsuch is a staunch supporter of Native American rights. He wrote the majority opinion in 2019 that the state of Oklahoma could not bring criminal prosecutions for crimes on Indian land without the consent of the Indian tribes. In 2022, the court modified the decision shifting the power to prosecute away from the federal government and back to the state. Again, this was a 5-4 decision. Gorsuch’s minority opinion was withering. Gorsuch recounted the Court’s decision in 1832 baring the state of Georgia from confiscating the land of 100,000 Cherokees. Georgia and the odious Andrew Jackson ignored the ruling, leading to the Trail of Tears. Gorsuch said that Native American tribes retain their sovereignty unless and until Congress ordains otherwise. Since Congress had not ordained otherwise, was Gorsuch right or was he wrong? Nonetheless, Gorsuch has been consistent in his reading of the Constitution.
What about the Chief Justice? Hard right critics have lambasted Roberts as being “wobbly”. But is he? Perhaps his most famous ruling was the vote that enabled Obamacare. Roberts said that if Obamacare funding were a tax then it was constitutional. Even the middle of the road Anthony Kennedy tried to convince Roberts that he was wrong but to no avail.
When the three Trump nominated justices were installed, the press said that Roberts had been rendered ineffective and it was now Thomas’ court. They were wrong. If anything, Thomas appears to be increasingly isolated in his view of the Constitution. Even Alito at times votes differently. Rather Roberts seems to be in control of this court. But is he wobbly? Not according to some experts. Roberts is consistent in his rulings. Despite his opinion on Obamacare he has led in clipping the wings of the Administrative state and rolling back federal regulatory authority. He seems less interested in social matters and has been said to favor ideological cease fires through procedural rulings that leave hard choices for another day.
Amy Coney Barrett has proven to be an intriguing justice. Even when she votes with the other conservatives which is 90 percent of the time, her opinions bear her own stamp. Coney Barrett has proven to be her own person. In her concurring opinions, she places less stock in history than do Gorsuch and Thomas. In fact, she has chided them on occasion for relying too much on the past. What is most enjoyable about Coney Barrett is seeing the confusion she sows amongst both the left and the right. Those on the left seem totally confused about her opinions. Those on the right say she is wobbly. However, she seems to be a solid conservative and her votes with the liberal wing have never – unlike Gorsuch – been in a deciding vote with the other conservatives in the minority.
What about Kavanaugh? Although many on the right thought that he would be the most likely justice to turn Souter, he has not. Many forget that Kavanaugh had perhaps the most experience on the bench than any other justice with hundreds of opinions. He has turned out to be pragmatic and consistent in his rulings and has been in the majority more than any other justice.
The newest justice, Ketanji Brown Jackson may turn out to be the most interesting. Seemingly ignored is her voting with the conservatives in two cases. She voted with the conservatives (excepting Coney Barrett) in ruling against the Justice Department’s novel application of the obstruction of justice law regarding January 6. In her concurrence she wrote “Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis and even when the conduct alleged is indisputably abhorrent.” We would never see such a statement from Kagan or Sotomayor. She also voted with the majority of the conservatives against a nationwide opioid settlement. But that was an interesting decision with Gorsuch, Thomas, Alito, Coney Barrett and Jackson in the majority with Kavanaugh, Roberts, Kagan and Sotomayor in the minority. Yet I have heard no one accuse Jackson as being wobbly.
Overall, despite all the gnashing of teeth about selected rulings from Biden, Schumer and those on the left there is no MAGA court or else there would be less whining from the right. I think that reasonable people should be pleased with the Robert’s court and impressed with the deft hand of the Chief Justice who now seems to be firmly in control.
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