The Supreme Court’s new term begins today, and it brings with it a paradox. On one hand, the Court is poised to deliver conservatives a string of sweeping, consequential victories on issues covering a wide swath of American life. On the other, conservatives are up in arms about how they’ve been betrayed by the Court, and particularly by Chief Justice John Roberts, despite the fact that Roberts has in all but a couple of cases been as reliable a conservative vote as they could have hoped for.
Let’s look at what’s coming. Among the cases the Court will be hearing are an affirmative action case involving the University of Texas, a case asking whether congressional districts must adhere to a “one person, one vote” standard, a case testing state restrictions meant to shut down abortion clinics, a case asking whether public-sector unions can require non-members who benefit from their collective bargaining to contribute to those efforts, and yet another lawsuit challenging the Affordable Care Act’s contraception provision.
While a couple of them may be in doubt, it’s entirely possible that by the time this term ends next June, the Court will have driven the final stake into affirmative action, struck a fatal blow against public-sector unions, enhanced Republican power in legislatures by reducing the representation of areas with large Hispanic populations, given a green light for Republican-run states to make abortions all but impossible to obtain, and undermined the ACA. Even if one or two of those don’t go how Court observers expect, it’s almost certainly going to be a great term for Republicans.
And while they’ve had a couple of recent high-profile defeats at the Court, conservatives have enjoyed a conservative majority for a couple of decades now. Yes, Anthony Kennedy sometimes joins with liberals, as he did in the case legalizing same-sex marriage. But just in the last few years, they’ve seen the doors of campaign finance thrown open to unlimited spending by corporations and billionaires; the Voting Rights Act gutted; affirmative action all but outlawed; an individual right to own guns created for the first time in American history; corporations granted religious rights to exempt themselves from laws they don’t like and sectarian prayer allowed at government meetings; unions undermined and employment discrimination suits made more difficult; and a whole series of less well-known decisions that enhance the power of the powerful, whether it’s the government or corporations.
Nevertheless, when you hear conservatives talk about the Court, they don’t say, “We need to make sure we get more conservative justices to keep winning.” Instead, they say, “We’ve been betrayed!” So what’s going on?
There are a couple of answers. The first is that they’re demanding not just a record of wins, but absolute perfection. They want not justices who will bring a conservative philosophy to the Court, but justices who will never stray from whatever it is the Republican Party wants at a particular time. The recent decision in King v. Burwell is a perfect example: the lawsuit itself was a joke, based on a series of claims about the Affordable Care Act that ran from the clearly false to the laughably ridiculous. When John Roberts sided with the majority to dismiss it — despite a long record of being on the “right” side of all the cases I mentioned above, plus many more — they declared him to be an irredeemable traitor.
The second reason is that narratives of betrayal are central to how conservatives understand history. Whenever events don’t turn out as they would like, whether it’s a foreign war or a lost election or a societal evolution, the story is always the same: We were betrayed, either by our opponents or by the people we thought were our allies. Was the Iraq War a terrible idea? No, we had it won — until Barack Obama betrayed us by pulling out. Why was George W. Bush so unpopular? Because he betrayed conservative principles by not cutting spending more, just like his father betrayed us by raising taxes (while the younger Bush was still president, longtime conservative activist Richard Viguerie wrote a book entitled “Conservatives Betrayed: How George W. Bush and Other Big-Government Republicans Hijacked the Conservative Cause).” As Digby memorably wrote, “Conservatism cannot fail, it can only be failed. (And a conservative can only fail because he is too liberal.)” And it goes back as far as you want. Why did the Soviet Union come to dominate Eastern Europe? Because FDR betrayed us at Yalta.
It isn’t that there’s never any truth in this story, particularly when it comes to the Court. David Souter, for instance, turned out to be a genuine liberal, not at all what Republicans expected when he was appointed by George H. W. Bush. But they’ve gotten so used to the betrayal narrative that they place even a single setback into it. Which may explain why conservative opinions of the Court have changed so dramatically in recent years. According to Pew polls, in 2008, 80 percent of Republicans approved of the Supreme Court, compared to 64 percent of Democrats. By 2015, the views of Democrats hadn’t changed — their approval was at 62 percent. But Republican approval had fallen to 33 percent, despite all they had won at the Court over that time. A full 68 percent of conservative Republicans call the Court “liberal,” an idea that is absurd by any objective measure, but one that is regularly fed by conservative media and Republican politicians.
To be clear, Republicans are right to focus on the Supreme Court during the campaign, and Democrats ought to as well. As I’ve argued before, there may be no single issue more consequential for America’s future in this election than what will happen to the Supreme Court in the next four or eight years. But Republicans aren’t just arguing that it’s important for them to elect a Republican so they can get friendly justices, they’re arguing that even Republican presidents and Republican-appointed justices can’t be trusted not to turn into judicial Benedict Arnolds.
If you’re someone like Ted Cruz, this idea fits in nicely with the rest of your message, at least during the primaries: the real enemy isn’t the Democrats, it’s the feckless and unreliable Republican establishment that has failed to deliver the conservative paradise we were promised. Which is why no one is louder in condemning Roberts than Cruz (who supported Roberts wholeheartedly when he was nominated). But I wonder, will they change their tune when the Court gives them one victory after another over the next nine months?