The Dissent Is the Crime

A unanimous court is not necessarily a healthy court.

If it’s not 9-0, apparently the Republic is in peril.

That, as best I can tell, is the new standard by which the left grades the Supreme Court. Last month, in Trump v. Barbara, the Court struck down President Trump’s executive order on birthright citizenship. Birthright citizenship was affirmed in a sweeping opinion by Chief Justice John Roberts, who traced the right back to the Fourteenth Amendment – and to a century of subsequent precedent. The plaintiffs got everything they asked for.

And yet, they complained – loudly! – anyway. Two attorneys writing for the left-wing Brennan Center took a (very short) moment to celebrate the victory and then launched into a bitter lament that the decision was not unanimous. The Court, they wrote, had faced an obvious and easy choice: “Rewrite the Constitution . . . or just follow the law.” That four justices read the Constitution differently was, they claimed, “an unsettling reminder that we were one vote away from a ruling bringing back Dred Scott.” Justice Brett Kavanaugh, who staked out a middle ground in declaring that birthright citizenship could be ended by legislative action but not an executive order, was accused of drawing “a road map for a right-wing Congress to complete Trump’s failed job.” Utilizing a phrase made famous by Martin Luther King, the Brennan Center authors concluded, in tones both indignant and mournful, that the conservatives on the court “have made it their job to bend the arc of the moral universe toward injustice.”

The Tantrum Tactic

The mainstream media rapidly amplified the outrage. Slate’s Mark Joseph Stern called the 5-to-4 vote on the constitutional question “a scandal,” as though a Supreme Court majority ruling in the left’s favor were a species of corruption. At Vox, Ian Millhiser opined that the Court had come “one vote away from a constitutional catastrophe,” and compared the conservative dissent to Korematsu, the 1944 decision that legitimized the internment of Japanese Americans. Across a broad spectrum of the left-wing press, there were howls of indignation not at defeat, but that the margin of victory was not greater.

It’s easy to make fun of pundits who can’t take “yes” for an answer, or who insist on finding disappointment in a victory. Seen through the lens of the Political Vise, however, this anguish is entirely tactical. Winning an election or a Supreme Court decision is never sufficient for progressives. The real objective is to shrink the range of respectable opinion, and to shift the window of acceptability several steps left. What was once reasonable disagreement gets recast as dangerous bigotry.

Slurs & Subpoenas

So what, you might well wonder. Why care if the left calls you a bigot? Those accusations matter because they are – invariably – weaponized. Shortly after the decision came down, a Tennessee professor of constitutional law declared that the four conservatives on the losing end of the Barbara decision should all be impeached.(His op-ed was widely syndicated and approvingly quoted by the left.) Impeachment is traditionally reserved for high crimes and misdemeanors such as corruption or bribery. In this case, the impeachable offense is reading the Fourteenth Amendment to contain a limit a liberal professor insists isn’t there.

On the left, the impulse to treat legal disagreement as a crime has become a respectable position, argued by respectable people, in the pages that shape respectable opinion. Put another way, cancel culture has come for the high court.

That impeachment-drunk professor is doing a job, intentionally or not. Every time a respectable voice insists that a mainstream legal position is not just mistaken but impeachable, the Vise squeezes a little tighter. Lower court judges read the op-eds, and rethink how far their reasoning can stray. The junior lawyer reads it and considers which arguments might cut short a promising career. The ordinary American reads it, and even if they roll their eyes, they are reminded that some once-acceptable views should now be kept quiet. Most people don’t want to be squeezed, or impeached, or fired. They go along to get along, and the entire culture shifts left.

Threat Theater

Contrast the left’s outrage at victory with how conservatives coped with defeat. President Trump, who cared deeply about this case, took the loss with almost uncharacteristic calm. Calling the decision “too bad for our country,” he said he would take the fight to Congress. The National Review and other conservative outlets noted that lawful roads to substantive immigration reform were still open. This is, of course, how Americans have traditionally responded to Supreme Court decisions with which they disagree. They express disappointment, vow the fight will continue, and start looking for the next constitutional angle to advance their cause. No one on the right proposed impeaching the five justices who ruled against the President.

The founders expected disagreement and made room for it. They seated multiple justices (and yes, the number nine is not constitutionally fixed) because they understood that debates were vital. The framers of our system understood that both majority opinions and dissents were vital records of important arguments. They knew that one generation’s dissent would become the next’s majority opinion. Major decisions – like Plessy v. Ferguson or Roe v. Wade – have been reversed by later courts. A Supreme Court incapable of anything other than unanimity? We call that a rubber stamp. A rubber stamp seems to be exactly what the left would like.

Whether you agree with the court’s ruling in Barbara or not, we should all be able to agree that the justices did their jobs. They took up a serious question, examined it from a variety of historical and constitutional angles, and ruled on it. Both the opinion and the dissent were detailed and thoughtful. That’s been a familiar story throughout the history of our nation. What is unfamiliar and troubling is that respectable outlets and law professors now suggest we purge the dissenters if we wish to preserve the republic. There is little risk that the four conservative justices will actually be impeached. The danger is that many Americans – and many lower-court judges – will feel the pressure to keep silent.