As Neil Gorsuch tries to avoid confronting his record in his campaign to steal Merrick Garland’s Supreme Court seat, it’s helpful to gain a broader view of a profoundly deceptive multi-decade conservative drama, in which this episode is but one tiny part. To understand that drama, we must begin with what it has risen up against.
In 1954, something truly remarkable happened. While America’s political system was still being held hostage by proud, self-identified racists, a full decade after we fought Nazi Germany in World War II, a bipartisan Supreme Court unanimously declared that segregated schools were unconstitutional in Brown vs. Board of Education. A court full of Franklin D. Roosevelt and Harry Truman appointees, with some strongly differing perspectives on law, was unable to reach a decision in early 1953. After the Republican governor of California, Earl Warren, was appointed chief justice by President Dwight Eisenhower, the case was reargued, and he corralled the disparate elements to a point of unanimity that left no doubt that an epochal page of history had been turned.
Although four other Eisenhower appointees would eventually join Warren on the court, his tenure there remained a beacon of liberal jurisprudence, which conservatives have battled back against ever since. You cannot really understand anything about the Supreme Court nomination process today if you turn a blind eye to this history. After Warren departed, Nixon tried to appoint two segregationists — G. Harrold Carswell and Clement Haynsworth — but they were both rejected. Shortly after that, Nixon nominated Lewis Powell (approved 89-1) and William Rehnquist (approved 68-26, the most ‘no’ votes of any successful nominee since 1930). Rehnquist was opposed by a record number of unions and organizations, including the NAACP, and lied about two significant racial aspects of his record. From then onward, one form of lie or another has figured significantly in the persistent conservative battle to turn back the hands of time and reverse the Warren court’s shining legacy that began with the Brown decision.
Generally speaking the lies take two main forms: a variety of different narrow lies about what specific individual judges have or have not done, and an array of broad lies about what judges in general should or should not do. All are variants of one big über-lie: That only conservatives act properly as judges. The first sort of lies most prominently involved Rehnquist and Clarence Thomas. The second set of lies divided neatly into two mutually contradictory clusters, one represented by Antonin Scalia, whose doctrine of "originalism" says there's only one right way for judges to approach the law (though he actually fudged things a lot, as we’ll see below), and the other represented by John Roberts (echoed by Neil Gorsuch today), who argues the exact opposite — that he uses everything he's got, and doesn't really have a philosophy at all, and it would be wrong if he did.
In between these two broad types of lies, there was one nominee who did not lie well at all: Robert Bork, whose nomination proved to be a turning point. With Bork, the lie machinery broke down, and he was rejected in a rare example of genuine public scrutiny and reflection. That resulted in a far more sophisticated approach to lying, both in the confirmation process itself, and in justifying judicial conservatism overall. To understand where we stand today, a review of all those mentioned will be helpful.
Rehnquist’s Racist Record Denied
In his two confirmation hearings Rehnquist lied about two separate issues. First, he lied about his personal, adversarial involvement in voter suppression efforts aimed at minority voters in Arizona in the late 1950s and early '60s. Rehnquist admitted being involved in the efforts, but only as a legal advisor, while a former assistant U.S. attorney, James Brosnahan, and other eyewitnesses testified that Rehnquist had been personally involved in challenging and intimidating individual voters. Joe Conason gave an account of this in a 2004 Salon story;
Under oath, Rehnquist denied Brosnahan’s charges, and based on conflicting testimony from other witnesses, the issue was left sufficiently murky for the Republican-dominated Senate to confirm him. But in his 2001 account of that nomination battle, "The Rehnquist Choice," former Nixon White House counsel John W. Dean concluded that Rehnquist — who said he didn’t “remember” engaging in voter challenges — had almost certainly lied to the Senate.
What’s more, a contemporaneous 1986 account from the Los Angeles Times provided first-hand testimony against Rehnquist from multiple witnesses. Those witnesses supporting Rehnquist were purely suppositional in character, and hence provided no true evidence at all.
The most obvious explanation is that Rehnquist and his supporters did not want us to know his actual record. But it wasn't just his deeds they wanted hidden: it was also both his heart and his mind. In a 2005 Huffington Post article, Alan Dershowitz discussed the importance of a controversial memo Rehnquist wrote for Justice Robert Jackson in the 1950s:
As a law clerk, Rehnquist wrote a memorandum for Justice Jackson while the court was considering several school desegregation cases, including Brown v. Board of Education. Rehnquist’s memo, entitled “A Random Thought on the Segregation Cases,” defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson. Rehnquist concluded the Plessy “was right and should be reaffirmed.” When questioned about the memos by the Senate Judiciary Committee in both 1971 and 1986, Rehnquist blamed his defense of segregation on the dead Justice, stating – under oath – that his memo was meant to reflect the views of Justice Jackson. But Justice Jackson voted in Brown, along with a unanimous Court, to strike down school segregation. According to historian Mark Tushnet, Justice Jackson’s longtime legal secretary called Rehnquist’s Senate testimony an attempt to “smear ... the reputation of a great justice.” Rehnquist later admitted to defending Plessy in arguments with fellow law clerks. He did not acknowledge that he committed perjury in front of the Judiciary Committee to get his job.
A devastating 2003 blog post from Brad DeLong includes an excerpt from Richard Kluger's 1977 book, "Simple Justice," which presents some damning evidence against Rehnquist's claim. As with the Arizona voter suppression case, it seems clear that if these issues had been raised in a trial court setting, Rehnquist could not have sustained his claims. It was the institutional presumptions surrounding the confirmation process that shielded him from the kind of scrutiny that could have led to a full disclosure of what had actually happened.
The Lies of Clarence Thomas and the Truths of Robert Bork
A very similar dynamic occurred in 1991, when Clarence Thomas escaped from facing testimony about his pattern of sexual harassment in the workplace. The accusations against him made by Anita Hill had leaked out and caused a furor, but a similar accusation from another woman, Angela Wright, was buried by the Senate Judiciary Committee, under the leadership of Joe Biden. In 2010, Steve Kornacki wrote an excellent summary for Salon of the overwhelming evidence against Thomas and how it was buried:
But Thomas also lied about another matter as well, when he claimed he had not debated Roe vs. Wade, and did not have an opinion about it — making him virtually unique among his law school cohort. But it was not just implausible; there is considerable evidence — both direct and indirect — that Thomas was lying about this as well. He developed strong opinions immediately after joining the court, for one thing.
n his 2001 biography of Justice Thomas, Andrew Peyton Thomas (no relation) reports three witnesses contradicting his self-characterization: Mike Boicourt, who served with Thomas in the Missouri attorney general's office, Reagan's Assistant Attorney General William Bradford and conservative media figure Armstrong Williams. Although the author chooses to soft peddle his conclusions, their testimony speaks for itself: Thomas had strong feelings about abortion and how Roe was decided long before he told the Senate otherwise.
Robert Bork was sandwiched in between Rehnquist's nomination as chief justice in 1986 and Thomas’ nomination in 1991. The rough reception he received — actually being asked tough questions about his record, particularly by Ted Kennedy — went a long way toward shaping how future conservative justices would be presented. Thomas was one example: a black conservative using his skin color to inoculate himself against liberal criticism, as he succeeded Thurgood Marshall, and proceeded to fight viciously against everything Marshall had stood for.
Thomas further backed this up with an elaborate narrative of personal hardship, hard work and struggle against racism, for which he blamed liberals more than conservatives. It was rhetorically effective — thanks especially to Joe Biden — but not the sort of strategy that could easily be duplicated by others.
It’s important to recall what really happened with Bork. As Scott Lemieux summarized:
Kennedy's opposition was based on Bork's public record. Bork did publicly denounce the Civil Rights Act as not merely unconstitutional but based on a principle of "unsurpassed ugliness." He did advocate for an extremely cramped interpretation of most civil liberties. He did believe that the Constitution provided no protection for a right to privacy. Republicans might have preferred that Kennedy not outline the consequences of these beliefs, but there's no reason for Democrats to abjure accurate statements merely because they're put in stark enough terms to be politically effective ….
"Borking" has become a conservative insult, shorthand to a political smear job. But the failure of the Bork nomination was anything but; it was an important moment that, among other things, saved Roe v. Wade from almost certainly being overturned. It says something about Bork's constitutional vision that accurately restating his public views has become synonymous with the dirtiest of dirty tricks.
The Big Lie of Scalia’s “Originalism”
If Bork exposed what conservatives judicial philosophy was all about, then obviously they needed to hide it — but without being perceived as hiding it. Thomas showed one way to do that, but it wasn’t automatically replicable. What they needed was a general purpose way of getting themselves off the hook, a way of saying, “this isn’t my view, personally, this is what the law requires, period.” They needed some version of what I previously called an über-lie: that only conservatives act properly as judges
That’s where another nominee from this timeframe — Antonin Scalia, elevated right alongside Rehnquist -- comes in. Scalia’s promotion of “originalism” provided a rhetorical framework for claiming authority without responsibility: He was only following orders—the true meaning of the Constitution. Don’t argue with him, he said, in effect: Take it up with James Madison and company. Or, when it came to statutory interpretation, take it up with a Congress of yesteryear.
Things really came to a head with Scalia’s “originalism” in the Heller case, reversing centuries of precedent, and finding an individual right to gun ownership in the Second Amendment, completely disregarding all that original text talking about “A well-regulated militia.” To defend what he had done, Scalia co-authored a lengthy tome, "Reading Law: The Interpretation of Legal Texts," which was eviscerated by conservative semi-maverick icon Judge Richard Posner, in a review scathingly titled “The Incoherence of Antonin Scalia.”
First, Posner explains that judges like to portray themselves in a passive, constrained manner, regardless of their actual judicial philosophy:
Judges tend to deny the creative—the legislative—dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis. The fact that loose constructionists sometimes publicly endorse textualism is evidence only that judges are, for strategic reasons, often not candid.
Posner then goes on to show that Scalia's strict textual originalism makes no sense under even modest scrutiny, and he actually abandons it, but without fully admitting he's doing so.
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
In short, Scalia himself isn’t really a textual originalist — he just played one on TV. Posner also points out the lephant in the room:
It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. ... Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified.
This points to an essential truth: Even when writing constitutional texts we are constrained by the limitations and blind spots of our own time. To hold us hostage to the ignorance and prejudices of the past is to forever prevent us from moving forward into a richer, freer, more equal future.
John Roberts' “Balls and Strikes” Lie
As Posner's criticism suggests, there are insoluble difficulties at the heart of Scalia’s textual originalism. One response to this was a reformulation, dubbed “the new originalism,” which is yet another scam. But the other was to embrace the “57 canons” kitchen-sink approach, and this is precisely what John Roberts — and now Neil Gorsuch, following in his footsteps — have done. They pretend to have no judicial philosophy at all, just calling “balls and strikes,” as Roberts put it. So there’s no there there for anyone to object to. Liberals, in contrast, have biases and agendas, and want to “legislate from the bench”!
But, ultimately, it’s another version of the big lie: Conservatives, one way or another, do justice properly, while liberals do not. So only conservatives should be allowed to be judges. Sometimes it’s claimed that there’s only one right way for judges to act—the old or new originalism. Other times it’s claimed that only having no fixed approach makes for fair and neutral judges — again, meaning only conservatives. Both these arguments are lies, and lies that contradict one another. They all serve to hide what conservative judges are actually doing on the bench.
But there is another alternative — the real-life actual alternative, which conservatives are desperate to obscure — and that is for a judge to guided by an overall judicial philosophy. (Indeed, without such a philosophy, the shibboleths of “following precedent” and “judicial restraint” that Roberts invoked can become meaningless.) This point was made in the wake of Roberts’ confirmation hearing by constitutional scholar Ronald Dworkin in the New York Review of Books.
Instead of the Kabuki theater confirmation hearings had become, Dworkin explained what senators should have been looking for: First, a coherent set of “convictions about the proper role of a judicially enforceable constitution in a democracy,” and second, convictions about the role of judges in supporting, promoting or defending that role. Only these sorts of broad philosophical and constitutional commitments can give order and meaning to a judge's interpretations, curbing political preferences on the one hand, while on the other giving concrete meaning to empty platitudes like “the rule of law."
Such a judicial philosophy can take various different forms, Dworkin argued. "Scalia's announced form of originalism, if in fact he held to it with any important degree of consistency, would constitute such a philosophy." But he saw another alternative:
Justice Stephen Breyer, in his recent book setting out his own constitutional philosophy, offers a more attractive example. He argues that the liberty protected by an appropriate conception of democracy embraces not only a citizen's freedom from undue government interference but a more active freedom to participate in self-government as an equal; and he undertakes to show that an understanding of the Constitution as aiming to promote that form of liberty can guide constitutional adjudication in several matters, including free speech, federalism, and the constitutionality of affirmative action.
I have myself defended a similar view of the Constitution: that it aims to create what I called a "partnership" rather than a majoritarian form of democracy by insisting that all citizens are entitled to an equal role and voice in their self-government, that government at all levels must treat citizens with equal concern, and that government must leave individual citizens free to make the personal decisions for themselves that they cannot yield to others without compromising their self-respect.
One doesn’t have to agree with Dworkin or Breyer or anyone else. The point is that multiple different constitutional philosophies are tenable, not as absolutes that everyone must submit to, but as hypothetical guiding frameworks. The proper role of the Senate confirmation process ought to simply be to ensure that a judge has such a philosophy to guide them, that they are reasonably clear and consistent in their ability to articulate it, and that it be compatible with our overall sense of what our Constitution embodies.
Several years later, the Alliance for Justice published two studies addressing the problems of ignoring precedent and lack of judicial restraint in the Roberts court. The first, “Unprecedented Injustice: The Political Agenda of the Roberts Court” highlights some of the most significant examples of the Roberts court ignoring and overturning precedent, while the second, “The Roberts Court’s Record of Overreaching,” focuses on judicial activism exemplified by disregarding long-standing procedural norms that no one ever dreamed of asking Roberts about during his confirmation: Taking cases that don't require the court's intervention, addressing legal questions that aren't squarely before it, settling questions of fact rather than leaving that to trial courts, and making up new law out of thin air. What these studies showed in case after case was a pervasive pattern of actions wildly at odds with the “balls and strikes” imagery that Roberts used to get confirmed. And they were precisely what we should have expected, in light of the criticism that Dworkin offered at the time.
Three Relevant 19th Century Lies
None of this is new or surprising. If we look back to the 19th century, we find that the two most notorious racist Supreme Court decisions — Dred Scott and Plessy v. Ferguson — both rested on lies. Not just the broadly-shared social lie of black difference and otherness, but more specific lies, as well. On top of that, a conservative judicial philosophy emerged which pretended to embody the only possible way of interpreting the law.
First, Dred Scott contained this fateful passage, at the very heart of its reasoning:
They [blacks] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.
This was simply a lie. The abolitionist movement had already begun at the time of the Revolution, slavery was abolished in Vermont in 1777, and was subsequently abolished in Massachusetts well before the Constitution was drafted. The later abolition came about in part due to a case involving a slave, Quock (or "Kwaku") Walker, who was promised his freedom on his 25th birthday by his first master, but denied it by his subsequent master after his first master died. When he ran away, and his new master beat him, Walker sued his master for assault and battery -- and won, with a judgment of 50 pounds. So there you have it, as plain as day: a black man with rights which the white man was bound to respect, bound by the judgment of a court.
The lies involved with Plessy are complicated, but I'll highlight two of them because of how clearly they contradict one another. The first, perhaps most central, is that discrimination only hurts blacks because blacks think that it does:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
This is clearly absurd, and the justices in Plessy knew it, because they also wrote:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
So, in the first case, it's all in black people's head. At the same time, it's far too deeply entrenched to be remedied by the Constitution. Both are obvious lies, and were obvious at the time to those not blinded by bigotry. But they are also mutually contradictory lies. A mythical "principled conservative" racist would choose either one or the other, not both.
Finally, as this brief essay from Harvard presents, a form of legal reasoning known as "classical legal thought" was formulated in the last third of the 19th century, and "dominated most American legal institutions until the 1930s," when it was displaced by the school known as "legal realism." While it had several different facets, what's most germane to our discussion here is the one described here:
Meanwhile, an influential group of law teachers was elaborating its own version of classicism. Properly organized, law was like geometry, the teachers insisted. Each doctrinal field revolved around a few fundamental axioms, derived primarily from empirical observation of how courts had in the past responded to particular sorts of problems. From those axioms, one could and should deduce - through uncontroversial, rationally compelling reasoning processes - a large number of specific rules or corollaries. The legal system of the United States, they acknowledged, did not yet fully conform to this ideal; much of the scholars' energies were devoted to identifying and urging the repudiation of rules or decisions that disturbed the conceptual order of their respective fields. But once purified of such anomalies and errors, the scholars contended, the law would be "complete" (capable of providing a single right answer to every dispute) and elegant.
Although there was more to classical legal thought than that, it epitomized the overall formalist obsession, and disregard for real world concerns, that had predominated in the pre-Civil War era, and that came to the fore once again with the legal realists who challenged it. This tells us, in short, that the conservative craving for a closed, unquestionable system of legal thought is nothing to new to our post-Brown vs. Board of Education period. We have seen it before, and it has passed away before as well. The sooner we come to see through these lies, the sooner we will be rid of them.