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?

Reader Discussion

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on April 15, 2016 at 16:18:23 pm

Unfortunately for gabe, be that an artificially variable attitude or a grandfather who is interested in posterity, the first paragraph of Editor Pulliam’s post invited comment pertinent to my cause: private liberty with civic morality (PLwCM) or better. Pulliam’s post could have invoked civic collaboration by Stephen E. Gottlieb. Collaboration requires an attitude of mutual work toward an agreed goal. What I urge for is civic morality in conformance to physics rather than opinion. I does not bother me if I seem to assert propriety to communicate with fellow citizens.

Physics is energy, mass and space-time from which everything emerges. Everything includes opinion, which is needed only when the objective truth has not been discovered. Humankind knows that the Sun is not a god but rather a natural nuclear reactor. So, the Sun is not a god, but physics has not negated the god hypothesis. Yet no god theory has survived the discoveries of physics and comprehension of its benefits and hazards.

Civic morality refers to justice in human connections, both coincidental and preferential, because lives are lived during the same moments in the same places; thus neither past justice nor future justice determines justice here and now. Religious morality addresses ideas such as ways to continue to live during the afterdeath, that vast time after body, mind and person have stopped functioning. Such morality is a private practice with no impact on civic justice or civic morality, except to the extent that it may inspire or motivate the believer to be civic toward the non-believer. However, experience shows that civic morality forces revision of injustices that arose from long-standing religious moralities, such as slavery.

I am reminded of Professor McGinnis’s recent post at libertylawsite.org/2016/04/09/unifying-the-two-cultures-in-law-schools/#respond . I regard his post as a citizen-to-citizen appeal for collaborative dialogue. Collaborators would do all they could do to involve citizens, rather than create special jargon intended to create a false “propriety” that plainly asserts, if you can’t communicate in our jargon, you are not part of the discussion. That aside, opposing law scholars must have an attitude of collaboration if they are to fulfill McGinnis’s vision for the future.

False exclusion is not at all a new practice. I quote James Madison, June 20, 1785, ““Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” If, by “Governour of the Universe,” Madison was referring to physics or equal, his statement is alright. However, if he was speaking of an institutional god or the god of nature, I reject Madison’s tyranny and all like it. That includes Thomas Jefferson’s famous statement with an oath on the altar of his god. Those two express their opinions, which I opine to be psychological tyranny in both cases. Traditional tyranny happens all the time in the USA.

There are a few ideas I wish Pulliam had generously addressed. First, the only sentence that represents the first principle of the founding of this country is the literal preamble. The articles that follow must conform to the preamble or otherwise the offending article must be amended. The subject of the article excludes woe, yet woe is inevitable, so “We the People of the United States,” is itself a goal; that is, the notion that all the people would understand and use the preamble is utopic. And “the United States” refers to 50 states and 6 territories, so the people in their states and territories are also the people in the USA. I count about nine first principles in the preamble, and trying to overlay principles from foreign countries or the United Nations is an tack against the preamble by Gottlieb. He would extend goals far beyond the preamble’s nine to over a hundred goals. I wish to enlist Gottlieb’s experiences and viewpoints together with Pulliams’s opinions to create possibilities for a promising future in the USA and beyond.

In mentioning Roberts court cases, a collaborative Pulliam would address a right-wing opinion such as Greece v Galloway. The opinion that “legislative prayer” is not a citizen’s business is tyranny. George W. Bush flummoxed the American people with his prayerful invasion of Iraq, and legislative prayer must be terminated. No personal gods are involved in civic morality.

And Pulliam’s comments on democracy are inadequate. The preamble has the stated goal, “establish justice,” and no form of democracy ever devised defends, let-alone establishes, justice. The constitution for the USA promises a republican form of government. I understand from Professor Ian Shapiro’s course, “Moral Politics,” (www.coursera.org/learn/moral-politics/) that modern democracy purports to satisfy all divisions of the population: thus, gender, race, political preference, religion, gender changes, sexual preference . . . the list goes on. However, humankind cannot provide what physics does not allow. One person is not entitled to live off the contributions of another. And a person who decides to change his or her body is not entitled to do so at the expense of other persons, any more than a person who decides to fly to Mars is entitled to charge the expense to the public.

Gabe and others complain that I am demanding consideration of my word usages, like “civic” and “physics.” However, I assert that they fear the challenge of collaborating for civic morality and revising opinion-based law to comport with physics-based ethics. Can the community of constitutional law professors lead a reformation? Can they, in light of discoveries since then reconsider Francis Bacon (d. 1626) in his statement, “Nature, to be commanded, must be obeyed.” A Civic People of the United States would reform Blackstone-adapted tradition with governance under personal gods by using physics to establish civic morality.

It would be interesting to see of Gottlieb would be attracted to PLwCM using both physics and the preamble for collaboration.

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Phil Beaver
on April 15, 2016 at 19:59:54 pm

Goodness gracious - would you leave me alone and let me get back to building a gazebo around my hot tub - so that I may enjoy some civic (im)morality!

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on April 16, 2016 at 00:42:46 am

"The truth is that constitutional lawyers know little about their real
subject matter-a complex of political, social, and economic questions.
What they know is a body of decisions written by other poorly
informed lawyers. Nowadays most judicial decisions, even those in
the Supreme Court, are written by law clerks a year or two away from
graduation. What professors of constitutional law teach and study is,
to an extent I should think they would find embarrassing, the work of
their recently graduated students. It is not a sustaining diet.

"This means that Ely* wrote his book under considerable handicaps.
In these circumstances, if it must as I believe ultimately be judged a
failure, it is not only an exemplary but a heroic one. And it is a failure
only in its constructive ambitions. As a work of criticism it is a
triumphant success. We should not be surprised. The lawyer's power
of destructive analysis is his greatest gift."
[Richard A. Posner 1991]

*John Hart Ely (1938-2003) "Democracy and Distrust" 1981

Apparently in the work critiqued here the "gift" has failed.

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R Richard Schweitzer
on April 16, 2016 at 11:19:37 am

To edit my first post:

1) “ . . . is an tack . . . “ should read “ . . . is an attack . . . “
2) And I hereby extend a thought, for clarification, that is implied elsewhere in the post: “No personal gods are involved in civic morality [except insofar as they inspire civic collaboration with believers who either have other personal gods or none yet behave so as to avoid causing real harm to or from anyone].”

Additionally, to follow-up on “democracy” and more, I add the paragraphs below.

The object of the federal, democratic-republic, that is specified and organized in the amendable constitution for the USA in order to fulfill the preamble is threefold. First, inhabitants, ideally We the People of the United States and until that goal is realized, A Civic People of the United States, 1) earn their living with fair-share of the gross domestic product to the extent of their actual natural abilities, 2) contribute to civic morality by acquiring the comprehension to empower their political votes in cities, counties, states and the USA, and 3) accept modern democracy as including all real-no-harm factions of the people. (Identified dissenters against physics-based ethics suffer law enforcement, as always.)

The above mentioned three practices would be used by most people to secure and preserve mutually private liberty. “Mutually” indicates that every civic person in every decade of their lives has this private liberty. Thus, the traditional work to adapt Blackstone and its British-Protestant god for the good of the owners--or that proprietorially opinionated “overall good”--reforms to civic safety and security (John Locke, 1690, reformed to physics) according to physics (Francis Bacon, d. 1626, updated to 2016), to secure private liberty for each inhabitant. (I use a British adverb to indicate that the goal “overall good” comes from the owners of the good, who exclude the non-owners from private liberty.) It is up to 1) each newborn to understand the possibility for PLwCM and 2) the newborn’s caretakers to coach him or her to collaborate for PLwCM. Other generations have left to our generation the opportunity to make PLwCM happen.

To respond to the plea from an antagonist: I do not know if “gabe” is a digital device or a real person. Regardless, hereafter, I will trust its posts as spam . . . unless unforeseen evidence justifies a change of commitment.

Also, my posts require a lot of time, and I am busy. Therefore, I will be more resolved to pass opportunities to contribute ideas about physics-based ethics as necessary reform from opinion-based law. This forum, I am convinced, has contributors touching the world’s best qualifications to collaborate and make a better future happen. Therefore, I do not seek to directly influence the left-leaning scholars, as I should; I think they want the best but their opinions favor limiting both personal liberty and civic morality (PLaCM). I leave it to you to collaborate with them and think you are doing your part, with exceptions like those I have noted in this thread.

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Phil Beaver
on April 17, 2016 at 13:14:10 pm

And what about the academics who provided favorable blurbs to promote this dreck? Dean Erwin Chemerinsky calls "Unfit for Democracy" "a stunning book...filled with important insights." Duke's H.
Jefferson Powell says it is "almost unique in its intellectual and global scope." The liberal cabal running legal academia uncritically promotes each other.

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Mark Pulliam
on April 17, 2016 at 21:45:38 pm

"What professors of constitutional law teach and study is, to an extent I should think they would find embarrassing, the work of their recently graduated students. It is not a sustaining diet."

From the last sentence, first paragraph, in the immediately preceding comment,

Ely's book is often cited as the so-called " seminal" work based on "Carolene Products Doctrine."

The law schools are not immune to the academic "log-rolling" of mutual cross citing to establish "standing."

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Image of R Richard Schweitzer
R Richard Schweitzer
on April 18, 2016 at 09:50:56 am

If only the Roberts Court really would repudiate the jurisprudence of Carolene Products, which is the Animal Farm of Supreme Court decisions -- some rights are more equal than others (and we, the Supremes) get to decide which ones are really important and which ones can be left to the mercies of the political and regulatory systems.

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George Leef
on April 18, 2016 at 10:56:10 am

For this person, born in Knoxville, Tennessee, USA, to mostly reliable yet Bible-dependent parents, there is no greater tyranny than Greece v Galloway and the "traditional" SC opinions that preceded it. Both legislative prayer leading to the firing on Fort Sumter and presidential prayer leading to the invasion of Iraq, make legislative prayer my business on physics-based ethics, contrary to Greece. (A person who is of We the People of the United States trusts and is committed to the goals of the preamble to the constitution for the USA and the constitution's cultivation)

Physics is not a matter of opinion and the people have no eternity to wait for SC opinion. "We" represents perhaps 23% of Americans, or a 74 million minority with no stake in the theism wars. The USA needs to reform now. ("Physics", in this context, rather than a scientific study, is energy, mass and space-time from which everything, including SC opinion, emerges.)

The fact that my thinking is unusual, perhaps novel, offers no excuse for ignoring it. My opinions springing from these statements can be changed by collaboration, much as SC opinion can be changed to accommodate a SC faction's agendum.

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Phil Beaver

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