The unsculptable Supreme Court

I finally saw “Hamilton” the other day, streamed online, and admired it. Yet I was struck by how quickly a revolutionary updating of America’s founding story has come to feel a touch behind the times.

Though impressively candid in many ways, “Hamilton” does not portray America’s creation fundamentally as a crime bestowing mainly superpower-sized racism and exploitation on the world. That has become the mandatory fashionable view only since the musical’s premiere five years ago, partly a symptom of the ensuing Trump Fever pandemic.

With all that in mind, along with the looming 2020 election, something else struck me. With actors portraying Alexander Hamilton, George Washington, Thomas Jefferson, James Madison and Aaron Burr leaping and twirling about the stage (and even John Adams getting mentioned several times) -- arguably the most consequential of America’s Founding Fathers makes no appearance in the Broadway sensation.

The missing framer was on my mind because his legacy arose prominently just 10 days ago in the culminating drama of the U.S. Supreme Court’s notable 2020 term.

In twin rulings affirming the principle that neither President Donald Trump nor any other president is above the law, Chief Justice John Roberts began by citing a core constitutional principle established 213 years ago.

“The President,” Roberts wrote, quoting an 1807 landmark case, “does not ‘stand exempt from the general provisions of the constitution.’?”

Who said so? The great Chief Justice John Marshall, who was named to lead the Supreme Court by Adams in 1800 and served until 1835, decades after the other giants of his generation had left public life. Marshall also established the doctrine of judicial review -- under which laws contrary to the Constitution are void -- and, among much else, the sanctity of contracts, the freedom of commerce across state lines, and the reality of America as a true nation, not merely an association of rival states.

Point being: Nothing presidents do is more important than the Supreme Court justices they appoint. Those justices often go on shaping American life and law long after the heated controversies of almost any election year are forgotten.

It’s a truth particularly worth noting just now, because of this strange fact: Today, the Supreme Court is the one major institution in American life that seems to be under the influence of moderation.

Don’t take my word for it. Adam Liptak of the New York Times wrote this month that “In an era of stark partisan polarization, Chief Justice John G. Roberts Jr. [has] steered the Supreme Court toward the middle …?.”

On SCOTUSblog, Adam Feldman notes that “[a]lthough conservatives might have envisioned [Trump’s recent nominees] as likely to solidify a strong right wing on the court, this has not been clearly the case.”

In addition to rejecting Trump’s claim of immunity from subpoenas of his tax returns (without as yet forcing their public release), the court this term established civil rights protections for gay and transgender workers; preserved the Obama-era reprieve from deportation for childhood immigrants; struck down a state law narrowing abortion rights; declined to expand gun owners’ rights; and handed Native Americans their most dramatic victory in a generation, declaring much of Oklahoma to be “Indian Country” for some legal purposes. Meanwhile, the Roberts court continued to strengthen religious freedom rights and restricted the discretion of administrative agencies.

There was more, with the court “doling out victories to both left and right,” as Liptak put it. But on the whole “?‘this term spectacularly frustrated the conservative ambition to transform the Supreme Court into the GOP’s lap dog’?” in the words of a Yale law professor who is apparently not himself a rabid right-winger.

Many conservatives may indeed harbor a long-standing ambition to house train the court. But they have been sorely disappointed by the creature’s behavior for decades. They were frequently disappointed in Justices Sandra Day O’Connor, Anthony Kennedy and David Souter. And conservatives wanting an ideologically obedient court are now fully exasperated with Roberts, who is “drifting left,” Liptak says, just as those predecessors did.

Even Trump’s two nominees -- Neil Gorsuch and Brett Kavanaugh -- are proving to be unruly lap dogs. Gorsuch authored both the Indian Country ruling and the gay rights ruling, and he and Kavanaugh were by far the two associate justices who most closely agreed with Roberts’ centrist voting record, according to Liptak and Feldman.

It is hard to think of justices appointed by Democratic presidents who have surprised and disappointed progressives as frequently as numerous GOP nominees have frustrated conservatives.

One theory to explain this is simply that “conservative” judges are philosophically more disposed to follow the law where it leads, as they understand it, even when it leads to outcomes the judges might not politically prefer.

I don’t know what the other theories are.

At all events, whoever becomes president for the next four years could well put a decisive, long-lasting mark on the court. Two veteran liberal justices, Ruth Bader Ginsburg and Stephen Breyer, are over 80. Clarence Thomas, perhaps the court’s most reliable conservative, is also its oldest at 70.

If elected president, Joe Biden might be expected to measure up jurists rather as did his former boss, President Barack Obama.

Of Obama’s two picks on the court, Justice Sonja Sotomayor is by now established as the court’s most liberal member, while Elena Kagan’s voting this term was the closest of any liberal justice to Roberts’, according to SCOTUSblog and Liptak.

Meanwhile, if he gets more nominations, Trump has said he would continue to choose from the conservative Federalist Society’s honor roll of judges, which gave us Gorsuch and Kavanaugh.

Food for voters’ thought. What’s clear is that the “disappointing” moderation of many conservative judges over many years -- and the general drift of the court “toward the middle” -- are rare stabilizing trends in our latter-day world turned upside down.

D.J. Tice is at [email protected].

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