by Ted Cruz
I don’t think David Souter knew he was a liberal when he was nominated to the Supreme Court. He had simply never confronted those issues—had never thought through them. In his first year or two on the Court, he had a relatively conservative voting record, voting often with Justice Scalia.
Souter’s clerks often mirrored the temperament and jurisprudence of the justice. They were reliable liberals, often quintessential Birkenstock-wearing, granola-hippie types. I mean that more figuratively than literally, although some of his clerks fit that description literally as well.
There is no doubt that the world would be profoundly different if President Bush had chosen Edith Jones instead of David Souter. But to truly understand how dramatically things went wrong, we should reflect on what the Court would have looked like had two nomination outcomes been different—had Bork been confirmed instead of Anthony Kennedy, and Jones been nominated and confirmed instead of David Souter.
If those two things had both happened, we would have had a five-justice majority of which Antonin Scalia would arguably have been the most liberal: a majority consisting of Chief Justice Rehnquist, Clarence Thomas, Robert Bork, Edith Jones, and Antonin Scalia, with Justice O’Connor floating out there as the possible sixth vote in any particular case. The annals of constitutional history for the last four decades would have been dramatically different.
The constitutionalist wing of the Court would have been strongly fortified at the time when President Clinton nominated Stephen Breyer, a brilliant court of appeals judge and Harvard Law professor, and Ruth Bader Ginsburg, a trailblazing activist lawyer for the ACLU and an extraordinarily successful Supreme Court litigator. Remarkably, in Ginsburg’s case, despite her having served as the general counsel of the ACLU and there being no mystery to anyone how leftwing her political ideology was, she was confirmed 98–0.
Despite Breyer’s and Ginsburg’s confirmations, the constitutionalist majority could have survived had Republicans gotten their picks right. First, Sandra Day O’Connor retired, which presented George W. Bush with a tremendous opportunity to shore up the Court’s devotion to the Constitution. Bush nominated Judge John Roberts to take her place. Shortly after that nomination, William Rehnquist passed away from thyroid cancer. Because the nomination was still pending, Bush withdrew Roberts’s nomination to be an associate justice and instead nominated him to be the chief justice. And shortly thereafter, Bush nominated Judge Samuel Alito to fill the associate justice position.
With John Roberts, the decision once again came down to two judges sitting in the White House. In one room was John G. Roberts, a brilliant lawyer, a judge on the D.C. Circuit, former deputy solicitor general of the United States, and someone widely considered the finest Supreme Court advocate of his generation. He was a former clerk to Chief Justice Rehnquist. I remember when I was clerking asking the Chief, “Of all the lawyers who appear before the Court, who’s the best?” The Chief chuckled and with a wry grin said, “I think I could probably get a majority of the Supreme Court justices to agree that John Roberts is the finest Supreme Court advocate alive.” As a twenty-six-year-old young lawyer, I heard that with amazement and, needless to say, paid close attention to every argument Roberts had at the Court. He was a brilliant advocate, but, personally, Roberts kept his cards very close to the chest.
In the Bush 41 administration, when he had been deputy SG, he had signed briefs in some controversial cases, most notably in Rust v. Sullivan, supporting the Bush administration policy that restricted medical personnel paid with federal taxpayer dollars from advocating for abortion. But no one who knew him believed those were necessarily Roberts’s own views. In his time as a government lawyer, in his years leading the appellate practice at one of the nation’s top law firms, and then in his time on the D.C. Circuit Court of Appeals, Roberts carefully avoided controversy. He was someone whom everyone knew wanted to be on the Court, and he lived a life to avoid any of the pitfalls that might derail that nomination.
In the other room at the White House was my former boss, Judge J. Michael Luttig. Luttig was the leading conservative judge of his generation. Appointed to the Fourth Circuit Court of Appeals at age thirty-six, he was fearless, brilliant, and deeply principled. In case after case, he followed the law, explaining the constitutionality of his decision in scholarly detail and enduring the pounding of criticism that inevitably results from standing for constitutional principle.
George W. Bush, like his father, when presented with the choice between a judge with a long, proven conservative record and the battle scars to demonstrate his fidelity and another judge with a much quieter and more opaque record, chose the easier path. But one can be forgiven for asking, what if President Bush had chosen the road less traveled?
To date, John Roberts has proven a somewhat more conservative chief justice than many of the activist judges described in this chapter. His first glaring deviation consisted of his two decisions upholding the Obamacare legislation. In both of those decisions, he engaged in legal gymnastics to achieve what I believe was a political outcome. In the first Obamacare decision, plaintiffs challenged the law and, in particular, the individual mandate that imposed a penalty on Americans if they did not purchase private health insurance. That law was challenged as exceeding the federal government’s constitutional authority to regulate commerce between the states. The plaintiffs argued that forcing someone to purchase a product they do not have, which they do not want, and which they may not be able to afford, is not constitutionally permissible “regulation of interstate commerce.”
The Supreme Court’s majority opinion in NFIB v. Sebelius authored by Chief Justice Roberts, agreed. I still remember well sitting down and reading that opinion the day it came down. The first 80 percent of the opinion is strong, principled, and consistent with the Constitution. The jurisprudential holdings on the Commerce Clause and the Spending Clause are important and faithful to the limitations on federal power.
Then, at the end of the opinion, Chief Justice Roberts engages in a quick little sleight of hand. Although the individual mandate would have been unconstitutional if it were a “penalty” (which is what the statute called it), Roberts instead decided to transform it into a “tax.” A tax is an imposition of a duty by the federal government to pay money to the federal government. It is governed by a different clause of the Constitution, the Taxing Clause.
The Court’s jurisprudence had long held that there is wide discretion for the federal government to design taxes. But here’s the rub: The individual mandate was not a tax. Nowhere in the thousands of pages of that mammoth bill did Congress describe it as a tax. Not only that, but the Democratic members of Congress who advocated for Obamacare repeatedly argued on the floor, and in the press alike, that it was not a tax. Barack Obama himself repeatedly argued that it was not a tax.
And notably, the U.S. Department of Justice did not make their principal argument that the mandate was a tax; DOJ raised it only as a secondary, alternative argument. And there was a reason that the Obama administration devoted little time and energy to this argument: because it was simultaneously arguing that the mandate was not a tax. A separate statute, called the Anti-Injunction Act, prohibits the Court from considering legal challenges to taxes until after they are paid. DOJ wanted the Court to consider and reject the challenge, so they argued that the mandate was not a tax under the Anti-Injunction Act, while claiming at the same time that it was a tax under the Taxing Clause. On the first day of the three-day oral argument, Justice Alito called them out on that contradiction:
Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
The Obama solicitor general admitted that, “no,” the Court had never done that. But that didn’t stop Chief Justice Roberts. Writing for himself and the four liberal justices, he
concluded that Obamacare was not a tax under the Anti-Injunction Act, and yet, remarkably—at the very same time—it was a tax under the Constitution.
This was not a minor distinction. Obama had campaigned in 2008 promising the American people he would not raise taxes on Americans earning less than $250,000 a year. If the individual mandate were a tax, Obama would have brazenly broken that promise. Indeed, the individual mandate, when it was in operation, typically resulted in the IRS’s fining over six million Americans each year because they could not afford to purchase health insurance. Of those the IRS fined, roughly 80 percent earned $50,000 a year or less and roughly 40 percent earned $25,000 a year or less. Single moms waiting tables and working sometimes two, three jobs—who couldn’t afford health insurance because they earned less than $25,000 a year—nonetheless found themselves subject to an IRS fine. It was one of the factors that later led former President Bill Clinton to describe this scheme as “the craziest thing in the world.”
Obama and the congressional advocates for Obamacare were quite deliberate and emphatic in arguing that the mandate was not a tax. One can understand why. Taxes are visible, taxes are out in the open, and taxes are readily subject to democratic accountability. If politicians want to raise taxes, voters can decide if they agree with that decision. But it is not the role of unelected judges to impose taxes upon a sovereign people from the bench.
Long after the Obamacare decision came down, multiple reports emerged from within the Court that, at a conference shortly after the Obamacare oral argument, Roberts had initially voted to strike down the individual mandate. I have no independent confirmation of that, but I also have no reason to doubt those widespread reports. The reports go that Roberts, after conference, changed his mind and so circulated an opinion ruling the opposite way from how he had voted in conference. I know John Roberts well. He’s a friend, and he was an incredibly talented Supreme Court advocate, but he also knew precisely what he was doing.
Here’s what I think happened. Roberts believed that striking down Obamacare would subject the Supreme Court to political criticism. He wanted to avoid that criticism. He wanted to shield the Court from being attacked in the course of a presidential campaign. As a clever lawyer, he thought carefully about a way to do so. He could write an opinion where virtually all of the holdings were principled, sound, and constitutional. With one little trick, transmogrifying the mandate into a tax, he could uphold the law and do, he believed, no lasting damage to the Court’s jurisprudence.
I suspect he viewed that decision as fulfilling a role, much like the role Chief Justice John Marshall played in Marbury v. Madison, where Marshall established the power of judicial review and for the first time struck down a statute enacted by Congress. He did so at a time when the Republic was new, when his political enemy Thomas Jefferson was in the White House and James Madison was secretary of state, and when the executive could easily have defied an order of the newly established Supreme Court.
Marshall was clever. He wanted to protect the legitimacy of the Court, and so Marbury was decided in such a manner (on jurisdictional grounds) that there was nothing Jefferson or Madison could do to defy the Court. I don’t think malice motivated Chief Justice Roberts in NFIB v. Sebelius. I think he was motivated by a genuine desire to protect the Court from political conflict. But that is not the job of a Supreme Court justice. As Roberts himself famously said at his own confirmation hearing, a judge’s job is like a baseball umpire: simply to call balls and strikes. With Obamacare, Chief Justice Roberts took off his umpire’s cap, picked up a bat, and swung hard at the pitch.
Had George W. Bush nominated Judge Luttig instead of Judge Roberts, I have complete confidence that five justices would have ruled according to the law and struck down Obamacare as unconstitutional. That would have presented a complicated political outcome for elected politicians, but it would have been an outcome consistent with the justices’ oaths of office.
The person I believe George W. Bush most wanted to nominate to the Court was Alberto Gonzalez. Gonzalez had been a corporate lawyer at a major Texas law firm, Vinson & Elkins, when then-Governor Bush appointed him to be his general counsel. He next appointed Gonzalez Texas secretary of state and then a Texas Supreme Court justice. When Bush became president, he made Gonzalez White House counsel and then U.S. attorney general.
If appointed, Gonzalez would have been the first Hispanic justice in history, a milestone that Bush would absolutely have loved to set. But national conservatives didn’t trust Gonzalez. They repeatedly made clear to Bush that they would have serious problems with his nomination; the phrase often repeated was, “Gonzalez is Spanish for Souter.”
When I was on his 2000 presidential campaign, I was the policy staffer advising Bush on the issue of judicial nominations. He told me then that his father had made two mistakes as president: promising not to raise taxes and appointing Souter. George W. didn’t want to repeat those mistakes.
So instead he nominated Harriet Miers, the successor to Gonzalez as White House counsel. Harriet is a talented lawyer and fiercely loyal to President Bush. But she had no record whatsoever as a judge and virtually no background or experience in constitutional law. And, according to the public reports, she did not perform well in her meetings with senators. As each day passed, conservative leaders began expressing more and more concern, and, remarkably, Bush decided to withdraw her nomination. When that happened, I sent her a quick email, telling her something to the effect of “Heidi and I know you’re hurting right now; we’re thinking of you and praying for you.” I figured, in the wake of her nomination’s being withdrawn, that she’d be pretty shell-shocked, but whenever she returned to her email it might give her some comfort. I was astonished when, just a couple minutes later, Harriet replied with something like “Thanks so much. I’m doing fine, just back at work!” It was a response that demonstrated grace and class and exceptionally strong character.
Both Gonzalez and Miers lacked any discernable proven record of defending conservative principles or paying a real price for doing so. And history teaches that, without such a record, the odds are overwhelming that they would not have become good justices. Maybe they’d have been David Souter, maybe they’d have been Sandra Day O’Connor, but there was no reason on earth to think they’d be Antonin Scalia.
And so, after a bumpy few weeks, the second justice that Bush appointed ended up being Sam Alito. Alito had been a judge on the U.S. Court of Appeals for the Third Circuit for many years. Prior to that, he had been in the solicitor general’s office and in the Office of Legal Counsel. Indeed, he had been a deputy to my former boss Chuck Cooper when Chuck ran the Office of Legal Counsel in the Reagan administration. Then-Judge Alito had a long, demonstrated record of following the Constitution and had endured the criticism that such fidelity necessarily entails. Indeed, his nickname on the Third Circuit was “Scalito.” Justice Alito was a terrific choice, and in his time on the Court he has proven a strong, principled, constitutionalist jurist.
Barack Obama had two nominees: Elena Kagan, the brilliant former dean of Harvard Law School and former solicitor general of the Obama administration, and Sonia Sotomayor, the first Hispanic justice to serve on the Court who had been a reliably liberal judge on the U.S. Court of Appeals for the Second Circuit. In almost any given case, the four liberal justices—Ginsburg, Breyer, Sotomayor, and Kagan—today vote in near-lockstep with one another. That lockstep, of course, is exactly how Democrats and the political left want them to vote, and so their opinions on any major issue are more or less predictable.
President Trump has also thus far had two Supreme Court nominees. Trump’s first nominee, Neil Gorsuch, had a solid record on the U.S. Court of Appeals for the Tenth Circuit—including multiple robust opinions in defense of religious liberty—although it was a record not nearly as lengthy, distinguished, and conservative as those of Rehnquist, Scalia, or Alito.
Justice Gorsuch’s first two terms on the Court were mostly good, but only time will
tell what kind of Justice Neil Gorsuch will ultimately become. History, alas, has shown that these questions are measured in decades, and not merely in a few years.
Sadly, this past June—in the most notable decision of his short tenure—we’ve already seen Justice Gorsuch joining Chief Justice Roberts and voting with the four liberals in a landmark decision, where the Court concluded that the Civil Rights Act of 1964, which prohibits discrimination “because of… sex,” also covers sexual orientation and gender identity. As a policy matter, you might believe Gorsuch’s position isn’t unreasonable.
Indeed, legislation to protect sexual orientation and gender identity has repeatedly been introduced in Congress, and at different times it has passed both the House and the Senate. But rather than allow elected legislators to make the policy decisions—and to address whatever compromises might be needed to protect free speech, religious liberty, and other fundamental rights—the Court just decreed the law was changed. Justices Thomas, Alito, and Kavanaugh dissented. Justice Alito put his disapproval in no uncertain terms, writing that “the Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
President Trump’s second nominee, to replace Justice Kennedy, was Brett Kavanaugh. Judge Brett Kavanaugh had a record much like that of John Roberts. Indeed, when then-presidential candidate Trump put out his initial list of eleven judges, and subsequently his expanded list of twenty-one judges, Kavanaugh’s name was deliberately omitted. The reason for this was simple; Kavanaugh, on the D.C. Circuit had written an opinion in a case called Seven-Sky v. Holder arguing that the Obamacare individual mandate was a tax; it was an opinion that many saw as a roadmap for Roberts’s subsequent decision upholding Obamacare in NFIB v. Sebelius.