Mike Pence Said the Quiet Part Out Loud for Conservatives on the Supreme Court

From Esquire

One of the few redeeming qualities of this charming era in American politics is that, for all the sprawling dishonesty, people also feel free to say the quiet parts out loud. The president is head and shoulders above the competition in this regard, telegraphing his intention to undermine the legitimacy of the upcoming election and torpedoing the notion that the modern conservative movement only has a problem with illegal immigration. Faced with the fact that 1,000 Americans a day are dying on his failed pandemic watch, he readily admitted he does not care: “It is what it is,” he said.

His vice president has been eager to get in on the act as well. Like many conservative movers and shakers, Mike Pence is not too happy with the Supreme Court these days. Even Trump’s handpicked—well, Federalist Society-picked—judge, Neil Gorsuch, let these fine folks down by penning the prevailing opinion in Bostock v. Clayton County, which held LGBT people cannot be discriminated against on the basis of their identity. (For most Americans living in the 21^st century, the idea you can’t fire someone for being gay seems like a reasonable application of the Civil Rights Act of 1964.) This was not Gorsuch’s only deviation from conservative dogma during this court session.

The true Benedict Arnold in these precincts is John Roberts, however. Starting with his horse-trading decision to uphold most of the Affordable Care Act, Roberts has joined a string of opinions that run counter to conservative ideological orthodoxy in recent years. In the past, Republicans might couch their criticism of these decisions in talk of Originalism and Textualism and Judicial Activism. Now they just say he fucked up his real job: to enact conservative priorities from the bench. Just ask Mike Pence:

It’s incumbent on us to point out that Pence’s characterization of the Louisiana abortion case is typically dishonest. He framed it as a “pro-life” measure to require doctors to have admitting privileges at nearby hospitals, but no one ever seems to explain why this is necessary. (In the prevailing opinion, Justice Stephen Breyer wrote that women would receive care at nearby hospitals, in the rare cases they might need it, whether the clinic doctors had admitting privileges or not.) It’s just another tactic in the vein of those laws mandating abortion clinics have hallways that are a certain width: the intent was to close abortion clinics. Louisiana’s law would have left the state without any facilities, which was the point.

But none of this is actually the issue: Roberts voted to strike the law down on the basis it was nearly identical to a Texas law the court had nixed in 2016. He was upholding precedent. This is something approaching the opposite of judicial activism—Roberts voted to uphold the initial Texas law, because he remains a reliable vessel for conservative priorities—but that’s the thing: conservatives want judicial activism in service to their ideological objectives, even if it means jettisoning (extremely recent) precedent.

This is the culmination of a long march to freedom for conservatives, who now speak openly of their intent to pack the courts with fellow conservatives. Time was that you’d emphasize what an exceptional jurist somebody was while winking that they’d be a solid conservative vote. (Leonard Leo, the ex-Federalist Society chief who has shepherded some of the most egregiously unqualified nominees in history to the federal bench, still talks in this code.) But now, many people just out and say it. This is destructive for the Court’s legitimacy, sure: an institution of democracy nominally tasked with interpreting the law—according to precedent and in the public interest—has been reduced to another partisan tug-of-war. But wasn’t this already happening, even if it went unsaid? The truth will set you free. This all got to the point that when it looked like Hillary Clinton would win the 2016 election, Senator Ted Cruz was talking about blocking her from appointing someone to the open seat on the Supreme Court for the entirety of her term.

You’ve got to feel for John Roberts, however. This guy put the cherry on top his long career of screwing people out of their voting rights—starting way back in the Reagan administration—by gutting the Voting Rights Act. This opened the floodgates for Republican state legislatures to enact policies that stop Certain People from voting, be it through voter-ID laws to combat the nonexistent problem of in-person voter fraud or simply closing polling stations in Black neighborhoods. This has been a key tool for Republicans to seize power without attempting to gain the support of a majority of citizens. How quickly conservatives forget all that he’s done for them. These authoritarians are awfully fickle!

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