Misfiring on the Roberts Court

Stephen E. Gottlieb purports to criticize Chief Justice John Roberts’ leadership of the Supreme Court for failing faithfully to interpret the Constitution to protect democracy. What Unfit for Democracy: The Roberts Court and the Breakdown of American Politics really shows is that Gottlieb, a law professor at Albany Law School, disagrees with some of the Roberts Court’s decisions.

This tract masquerading as legal scholarship is incoherent in its definition of democracy and also its understanding of constitutional law. It makes tendentious use of history and political science to conceal a partisan agenda. And to top it all off, the book is disjointed, a cobbling together of previously published articles.

Unfit for Democracy begins with an overview of American history so biased that it makes Howard Zinn’s A People’s History of the United States seem like patriotic propaganda. No misdeed, real or imagined, from the early settlers to the end of the Second World War goes unmentioned. The colonial rebels were “armed criminal gangs”; the Founders were aristocratic plutocrats. In Gottlieb’s account, the American past consists of little besides slavery, the abuse of Native Americans, restricted suffrage, corrupt Robber Barons, exploitative employers who created “company towns” and controlled workers by paying them in “scrip,” segregation, lynchings, resistance to organized labor, the Red Scare, poverty, eugenics (a Progressive innovation, he fails to mention), the KKK, and the internment of Japanese Americans.

In Gottlieb’s telling, the jurisprudence of the Progressive Era and, more importantly, the half-century of jurisprudence beginning with United States v. Carolene Products Co. (1938) spared the country from the “destructive events” that threatened American democracy by returning the country to its “egalitarian roots.” But the salutary developments wrought by Carolene Products and its progeny “have now been abandoned by the Roberts Court,” he writes. This turns out to be the crux of the entire book. The author pines for the return of the Warren Court.

To explicate the “true” meaning of democracy in America, Gottlieb finds it necessary to take the reader on a tour of international law, foreign constitutions, and the United Nations Universal Declaration of Human Rights, leavened with a survey of decisions from foreign courts. He wants to “uncover what democracy can mean and has meant to others.” The reader begins to wonder why “democracy” means something other than elective self-government but learns in chapter 5 that this is a superficial conception of it.

Gottlieb relies on Left-leaning political scientists to elaborate on a more expansive notion, one that—it turns out—coincides quite neatly with liberal ideology as enforced by activist judges. Courts abroad, he complains, treat “democracy” as a term “with real meaning that courts can and should enforce, in sharp contrast to the Roberts Court, for which democracy is largely an excuse for inaction.”

Democracy, we learn, requires “rights” (including positive rights, by which he means entitlements), universal suffrage (including for immigrants and felons), gender equality, racial equality, “economic justice,” governmental action to break up concentrations of economic power, governmental action to curb the influence of money in political campaigns, and other items on the ACLU’s agenda (on whose New York board of directors the author served for over a decade).

Let us not omit governmental action to control the possession of guns, a topic Gottlieb is obsessed with.  He devotes an entire chapter to gun ownership and “paramilitary” organizations in the United States. Citing the discredited Southern Poverty Law Center, he breathlessly suggests that private gun ownership will lead to domestic terrorism and insurrection.

Considering that the book does not actually focus on the Roberts Court until its last two chapters, its title seems ill-fitting. (True, there are snide Roberts references throughout.) In any case, the critique found in those last two chapters amounts to objections to specific rulings deemed insufficiently activist in the areas of criminal procedure, election law, affirmative action, religious liberties, antitrust, product liability, securities law, class actions, and arbitration.

Unwarily the author tars and feathers the Roberts Court even for its unanimous decisions, notwithstanding the presence on it of Justices Ginsburg, Breyer, Sotomayor, and Kagan. (He condemns even decisions where a Progressive member of the Court wrote for the majority, such as Long Island Care at Home, Ltd. v. Coke {2007}, whose opinion is by Justice Breyer.) More predictably, he excoriates Citizens United (2010) and District of Columbia v. Heller (2008). Inexplicably, he fails to mention Obergefell (2015) and glosses over the decisions upholding Obamacare.

Quite a ragged performance. Not only that, it is troubling to see a teacher of constitutional law dismiss the importance of the separation of powers and federalism, and—going beyond advocacy of a “living constitution”—question whether the words of the Constitution have any relevance at all.

“What is the source of our obligation to obey a two-century old text, let alone nothing but the text?” he asks. Textualism and originalism “are not enough to explain” why “‘original’ consent to the document by a portion of the population in 1788 binds us now.” He would have his reader turn elsewhere: “The legitimacy of the Constitution is better based on contemporary justice,” which he equates with the book’s none-too-well-delineated notion of “democracy.”

Trying to summarize what the Roberts Court has done wrong, he says: “One essential part of justice is self-government. Insofar as the Constitution creates a democratic government, it is a legitimate text.”  This nonsensical syllogism forms the basis of his belief that the Roberts Court is “unfit for democracy” and has misapplied the Constitution by sometimes ruling in favor of owners of businesses and the Second Amendment, and against racial preferences and criminal defendants.

The following convoluted passage comes close to summarizing, near as one can tell, his case:

A democratic constitution should be interpreted in a democratic way. Voting, civil, political, and equal rights flow directly from a democratic interpretation of the Constitution. The language is there. The actions of the government are at issue. We merely need to interpret it to protect the future of the American republic. And that path has been cleared before.

If there remained any doubt as to what that preferred path is, the author ends by being a little less convoluted: “The approach defined in the 1938 Carolene Products footnote and elaborated over a half century from the Hughes Court through the early Burger Court.” Deviation from the famous footnote 4 “leaves us defenseless against the enemy within.” End of book.

Stripped of pseudo-academic jargon, the argument boils down to this: The Constitution should be interpreted to produce Progressive policy outcomes, using New Deal era Supreme Court doctrines, and to the extent that the Roberts Court has failed to do so, it has harmed democracy.

This is not reasoned analysis, or scholarship, but an ideological rant that eventually peters out in a hackneyed paean to Carolene Products footnote 4. What were the editors of New York University Press thinking?