http://www.nytimes.com/2015/07/05/opinion/sunday/linda-greenhouse-the-supreme-court-and-the-politics-of-fear.html?ref=opinionLinda Greenhouse
WHEN he ran for president the second time almost half a century ago, Richard M. Nixon made Earl Warren’s Supreme Court a target of his campaign. It was a brilliant move. His accusation that the court had tilted “too far in weakening the peace forces against the criminal forces,” as he put it in a widely noticed 1967 Reader’s Digest article, resonated with a public that had seen the crime rate double since 1960. It was no longer acceptable, at least in polite circles outside the South, to denounce the Supreme Court explicitly on race, so Nixon’s dark warnings about a breakdown in public order (the article was entitled “What Has Happened to America?”) served double duty. Fear was in the air, fear that Nixon and his henchmen (Patrick J. Buchanan was the article’s ghost writer) knew how to exploit.
I thought of Nixon last week as I watched the parade of Republican would-be presidents outdoing one another in denouncing the “lawless” and “brazen” Supreme Court. With its “hubris and thirst for power,” the court threatens “the very foundations of our representative form of government,” the most Nixonian of them all, Senator Ted Cruz of Texas, warned.
Senator Cruz, attacking the court for its rulings on both the Affordable Care Act and same-sex marriage, is calling for a constitutional amendment that would strip the justices of their life tenure by making them subject to retention elections. Senator Cruz (like Chief Justice John G. Roberts Jr.) once clerked for William H. Rehnquist, a fierce defender of judicial independence even when he disagreed with a particular judge. While Senator Cruz wrote in National Review that he had “no doubt that Rehnquist would be heartbroken at what has befallen our highest court,” I think it much more likely that the late chief justice is turning over in his grave at his former law clerk’s antics.
Not that any of the Republicans have asked me for advice, but I’ll give them some anyway: Fomenting backlash is not a winning strategy. Just as fire needs oxygen, stoking public anger against the Supreme Court can’t succeed in a vacuum. Backlash needs to be fed and sustained by fear: fear of crime; fear of a threat to “our Southern way of life”; fear, in the case of abortion, of a revolution in women’s traditional role in the family and in society.
And what, exactly, are people supposed to be afraid of now? A same-sex married couple with affordable health insurance?
Reading the opinions in the marriage case, Obergefell v. Hodges, I was struck by how determined the dissenters were to fan the flames of resentment. Be afraid, be very afraid, the dissenting justices warn those with religious objections to same-sex marriage. People who “cling to old beliefs” will be left having to “whisper their thoughts in the recesses of their homes,” Justice Samuel A. Alito Jr. cautioned. “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage,” Chief Justice Roberts wrote, adding: “The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, however, that is not a word the majority uses.” That is quite a word choice, “ominously.”
Justice Alito’s opinion, joined by Justices Antonin Scalia and Clarence Thomas, exudes a sense of anticipatory victimization. The decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” he predicted.
It was left to Chief Justice Roberts to draw the inevitable analogy to abortion. He wasn’t as direct as Caitlin La Ruffa of the college-based Love and Fidelity Network, who posted to the Christian-right publication First Things: “Well, we got the Roe v. Wade of marriage.” More obliquely, the chief justice wrote that “there will be consequences to shutting down the political process on an issue of such profound public significance.”
What consequences? “People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.” What “sort of thing” might that be? The chief justice didn’t actually say the word “abortion,” instead referring readers to “a thoughtful commentator” who wrote about “another issue” in a 1985 law review article that, conveniently for the chief justice, happened to have the words “Roe v. Wade” in its title. This was Ruth Bader Ginsburg’s famous article, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” written in her pre-Supreme Court days. She wrote that “heavy-handed judicial intervention” by the court into the abortion issue “appears to have provoked, not resolved conflict.”
As I’ve written here and, with my colleague Reva B. Siegel, elsewhere, the backlash narrative that Judge Ginsburg offered and that Chief Justice Roberts has now embraced is not a complete account of what was happening with respect to abortion before and after the 1973 ruling. More tic than analysis at this point, the abortion analogy has little to tell us about the amazing trajectory of marriage equality and its likely future.
Social change doesn’t come without conflict. That was true of abortion before Roe v. Wade, as Nixon-era Republican strategists grabbed the issue as a tool of party realignment, successfully linking it to a larger “family values” agenda that for the first time made allies of conservative Protestants and traditionally Democratic Catholics. That was true of same-sex marriage, political fear of which led Clinton-era Democrats into the wilderness of the Defense of Marriage Act.
But do courts play a singular and especially corrosive role in creating conflict, as the chief justice suggests? Not necessarily. Litigation can play a highly useful role in sharpening and defining issues. Courts can teach — a nearly platitudinous sentiment with which I suspect the chief justice, in other contexts, heartily agrees. I believe the successful litigation over California’s Proposition 8, during which the opponents of same-sex marriage were unable to answer the trial judge’s question about what harm they thought would come from it, taught the country much.
In any event, a majority of the public favors the outcome of both the health care and the marriage decisions, a CNN poll found in midweek. The majority comprised both Democrats and, significantly, independents, 63 percent of whom approved both rulings. By smaller margins, Republicans disapproved of both. For Republican politicians handcuffed to their base, which is to say all of them, there is a danger sign, surely, in their increasing distance from independent voters who will control the outcome of the next election. So too is there danger in a recent Gallup poll indicating that for the first time in seven years, more Americans identify themselves as “pro-choice” than “pro-life.”
A week after the end of a remarkable court term, the message may be this: It’s not the voters, but the Republican presidential candidates, who should be afraid.
