On July 1, 1987, Massachusetts senator Ted Kennedy delivered one of the most infamous, hysterical, and false attacks in the modern history of the U.S. Senate. As part of the effort to block Robert Bork’s nomination to the Supreme Court, he reinvented one of the outstanding conservative legal minds of his generation as the Bull Connor of the bench. Kennedy’s grotesque attack is a perfect fit for our uncivil times:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Now, fast-forward to 2018. Writing in The New Yorker, CNN legal analyst Jeffrey Toobin paints his own puzzling picture of a post-Kennedy Court:
It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.
There’s only one element in that list that’s potentially fair. I do hope the Supreme Court will overrule Roe and return the abortion issue to the states. And some states could indeed ban abortions and prosecute doctors and nurses who defy the ban (I hope more than just “some”). But to declare that the Court “will” overturn Roe? That seems wildly optimistic. I’ll believe it when I see it.
The rest of the list, however, is overblown. First, the issue in cases such as Masterpiece Cakeshop isn’t whether shopkeepers can refuse to serve gay customers. It’s whether certain artistic professionals (who serve gay customers all the time, by the way) can be forced to use their artistic talents to help celebrate events or create messages that violate their conscience. It’s not about whether Denny’s can refuse to seat a gay couple or whether Hilton can refuse to book reservations for a same-sex wedding.
Second, if the Court ends state-mandated affirmative action, it will “guarantee” no particular racial outcome. At present, affirmative action at elite institutions helps certain African-American and Latino students, slightly helps white students, and profoundly hurts Asian-American applicants. But that reality depends on factors that can and will change in response to changing rules and changing incentives. An end to state-mandated racial balancing may have reasonably predictable short-term consequences (more Asian students at elite schools, for example), but it guarantees nothing over the medium or long term.
Third, Toobin is playing standard word games about voting. Presumably, when he claims that courts will “approve laws designed to hinder voting rights,” he’s talking about measures such as voter ID. Yet “nine of the eleven states that have implemented so-called strict ID laws either saw an increase in turnout or exceeded or exceeded the national average in turnout in 2016.” It’s not hard to vote with ID.
Fourth, when Toobin says that the Court “will sanction execution by grotesque means,” he’s painting a lurid picture without a single concrete example. He’s also implying that there’s a way to execute a man that isn’t “grotesque.” The question is whether a method is “cruel and unusual,” not whether it’s “grotesque,” and there is no evidence that an originalist Court would sanction cruel and unusual punishments.
Fifth, the available evidence is that an originalist Court is likely to follow the Heller precedent and protect weapons in “common use for lawful purposes.” That likely includes semi-automatic rifles and pistols with standard-capacity magazines. It does not include “machine guns.” Nor does that definition include “bump stocks.”
No one should doubt that the stakes are high in the Supreme Court, and — as I wrote about at length last week — a more originalist Court will result in substantial doctrinal changes (among them, more protection for individual liberty against state power), but it’s important to at least try to keep the debate within the bounds of accuracy and reason. Roe is potentially at stake. No question. And that fact alone is enough to lead to a super-charged confirmation hearing. As for the rest of Toobin’s alleged parade of horribles? The exaggerations do a disservice to the public discourse.
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