Ted Cruz

Ted Cruz's Supreme Court Folly

What he really wants is a justice that will agree with what he believes the law should be.

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Ted Cruz
Credit: Gage Skidmore / photo on flickr

The death of Supreme Court Justice Antonin Scalia shocked Ted Cruz into a sudden realization: It's even more important than before that Ted Cruz be our next president. 

Because of the vacancy, he says, "the Second Amendment, life, marriage, religious liberty, every one of those hangs in the balance." He warns that "we cannot trust Donald Trump" with this responsibility. 
We don't know what sort of person Trump would like for the court. But we do know what sort of person Cruz likes. And based on that knowledge, we can't trust Cruz?by Cruz's own standards.

Consider two justices who have elicited strong opinions from him. The first one is someone whose appointment he regards as "a mistake," who in one landmark case "changed the law in order to force that failed law on millions of Americans for a political outcome." The second is a "principled conservative" known for "faithfully applying the Constitution and legal precedent."

You may conclude that the Texas senator has a sharp eye for the right kind of justice and the wrong kind. Not quite. Both his praise and his condemnation were in reference to the same person: John Roberts. 

When Roberts was nominated in 2005, Cruz gushed over him. Today, he regards the chief justice, who had the gall to uphold Obamacare, as part of "an out-of-control court." Either Cruz was wrong before, or he's wrong now. 

It could be that Cruz is not very good at detecting which Supreme Court prospects are principled conservatives. Or it could mean that he is good at picking them out—but clueless on what their approach will produce. 

Maybe Roberts is not a conservative, or maybe a conservative path doesn't always lead where Cruz wants to go. However, it's hard to make the case that he's not a conservative: During the court's last term, Roberts voted the same way as Scalia 90 percent of the time—almost exactly as often as Clarence Thomas did. 

When Roberts voted to uphold Obamacare, it's possible he was being faithful to his principles, at the price of offending his usual allies. That would be in keeping with what Scalia once said: "Very often, if you're a good judge, you don't really like the result you're reaching."

Republicans often act as though there is a clear, simple, conservative approach to judging—which is to apply the words of the Constitution according to their original meaning. That's the mode of judging (known as originalism or textualism) that Scalia championed. But his approach never won over even most of his Republican-appointed colleagues. 

Roberts, Samuel Alito and Anthony Kennedy, notes University of Chicago law professor Eric Posner in Slate, "are not originalists." They don't go strictly by what the text was understood to mean when it was written but "decide cases the way justices always have: by using whatever materials at hand—historical sources, yes, but also (and mainly) judicial precedents, common sense, general principles, political values and so on." 

Nor does originalism necessarily tilt rightward. Liberals like Yale's Akhil Reed Amar and Jack Balkin embrace it. So did Supreme Court Justice Hugo Black, a hero of the American Civil Liberties Union. 

Scalia himself didn't even practice it all the time. He voted to strike down a law against burning the American flag, which he saw as a violation of the First Amendment right to free speech. But flag-burning is not speech—only a form of communication—and the opinion joined by Scalia made no attempt to prove the framers thought it was. 

The more important fact, though, is that even staunch conservatives can reach drastically different answers to fundamental questions. Scalia wrote the decisions interpreting the Second Amendment to protect an individual right to own guns. 

But Appeals Court J. Harvie Wilkinson III—an undisputed conservative appointed by Ronald Reagan—said it was wrong to "read an ambiguous constitutional provision as creating a substantive right that the court had never acknowledged in the more than 200 years since the amendment's enactment." 

Cruz promises that any justice he chooses "will faithfully follow the law." But all justices think they do that. Roberts is a villain in Cruz's eyes only because he ruled in a way different from what Cruz wanted. 

It would be a terrible justice, though, who would slavishly implement the desires of the president who made the appointment. If Cruz wants a justice who will always rule the way he prefers, he's chasing the wrong job.

© Copyright 2016 by Creators Syndicate Inc. 

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  1. I saw the headline on Twitter and immediately knew who the author was.

    “We don’t know what sort of person Trump would like for the court.”

    He literally said who he would like for the court.

    “Either Cruz was wrong before, or he’s wrong now. ”

    He was wrong before, in that he did not expect Roberts to be the swing vote on Obamacare, a position he shared with, for example, everyone.

    “Or it could mean that he is good at picking them out?but clueless on what their approach will produce. ”

    Considering Roberts offered no clues, it stands to reason one would be clueless. If I’m petting a kitten, and it burns me to death with fire, is that an indication I am clueless re: kittens?

    “But flag-burning is not speech”

    If anyone wants a textbook definition of “deliberately obtuse”, there you go.

    “But Appeals Court J. Harvie Wilkinson III”

    Did Cruz say anything about appointing him?

    “an undisputed conservative”

    A Google search yields quite a pit of dispute as it pertains to his conservative credentials.

    “read an ambiguous constitutional provision as creating a substantive right that the court had never acknowledged in the more than 200 years since the amendment’s enactment.”

    Which is Chapman’s position, and we are all just crazy for disagreeing with the Reagan appointee who espouses it because reasons.

    “It would be a terrible justice, though, who would slavishly implement the desires of the president who made the appointment.”

    Like John Roberts.

    1. Seriously, what are Steve Chapman’s libertarian bona fides? I’m not asking for a lot, here.

      And what are his intellectual strengths? His journalistic ones?

      He is a tepid writer, a thinker of stale, left-of-center cliches. The sort of person that makes you want to defend Ted Cruz, of all people.

      He and Richman at Reason drive traffic to Cato.

      1. Just “left of center”? My view is he goes much further than this.

        1. Chapman is a progressive.

  2. I have a compromise – appoint me to the supreme court.

    While I am socially conservative, I adhere to a strict reading of the constitution wherein if it was not explicitly granted to the government, it is not within their purview to meddle.

    I may not be eloquent or witty, but I will do a fine job at pushing for the restraint of the leviathan.

    1. Drop an email to the White House. Obama is *always* open to good ideas!

  3. Thank you, Mr. Chapman, for this article. I now see that I must eschew Mr. Cruz in favor of Mr. Trump.

  4. Scalia himself didn’t even practice it all the time. He voted to strike down a law against burning the American flag, which he saw as a violation of the First Amendment right to free speech. But flag-burning is not speech?only a form of communication?and the opinion joined by Scalia made no attempt to prove the framers thought it was.

    Chapman must be competing with Richman for sheer stupidity.

    Reason Staff, you need to stop publishing this drivel. Seriously, it’s unbecoming.

    1. But flag-burning is not speech?only a form of communication

      How is communication not speech?

      Go back and feel ashamed, Steve

      1. It’s not speech, it is communication. Pointing to a broom as an indication you want someone to sweep is “Communication” but not “speech.” But that distinction within the first amendment is simply ridiculous.

        By that token:
        – television and radio news anchors and reporters aren’t journalists. They can’t claim first amendment protections.
        – news put online and not printed in a news paper isn’t journalism, either.
        – flipping someone the bird or waving the peace V sign at them are not protected because it is not speech

        And it just keeps getting more ridiculous the further you think about it. The interpretation of the first amendment can only be explicitly taken to mean “All news dissemination and speech is protected from the governments’ oppressive power.”

        Mr Chapman seems to be conflating a “literalist” interpretation with an “originalist” interpretation.

        1. Scalia believed that warrantless wiretaps were perfectly OK because the 4th Amendment protected papers and effects not conversations and since no direct invasion of a person’s property was necessary to “bug” his phone, there was no Constitutional issue.

        2. God damn, I can’t even believe Chapman is that stupid. Now I have to go and read the article, which I generally refuse to do when I see articles by this asshat……

          Yep, he sure did.

          Seriously, Nick, Matt. Do not fucking publish this clown. He is a fucking retard and he makes the two of you look guilty of retardation by association.

    2. Chapman isn’t a libertarian. He’s a Democrat. He’s an embarrassment to the site.

  5. So I’m supposed to hate Cruz because he regrets backing a justice who allowed Obamacare to remain despite its unconstitutionality?

    Is Mr. Chapman retarded?

  6. Obama wants a yes-man, too.

    1. No, Obama wants a Trans-queer, gender semi-fluid yes-person of color.

  7. Looking at Cruz’ own words it is hard not to notice the parallels with Christian National Socialist language of the 30s and 40s. Religious “freedom” in Cruz-speak has nothing to do with an individual not being coerced. There, freedom is the attribute enjoyed by a collective (congregation, party, political state…) to exercise coercive force, especially if for the benefit and protection of those who bear the brunt of such altruistic coercion (or better still, their immortal souls).
    Anyone with a PC can verify that the word “freedom” appears in Mein Kampf no fewer than 80 times, but as something had by collectives (peoples, states, races, governments…) in almost every case as the power to impose painful, harmful or deadly force on actual living individuals, perhaps the better to free their immortal souls into something preferable to life. With freedom like this, who needs totalitarianism?

    1. An interesting comment but I suspect you are full of shit. Do you have any specific quotes by Cruz that back up your assertions?

      1. Reminds me of the guy I knew in Phoenix that fled the US to escape the coming theocracy. He went to Germany.

      2. Cruz has a generally positive view of Christianity, that’s all the evidence Hank needs to indict him.

    2. Are you insane or just full of such hate that anybody you dislike you have to write paragraphs that try to connect them to the Nazis?

      1. He really, really, doesn’t like Christians.

        He thinks that because some Nazis tried (and failed) to claim that their evil was done in the name of Christianity, that is proof that all Christians are evil.

        We like to call these “faulty generalization” fallacies. He’s commits several of them every time he comments.

        1. Wait, you expect me to believe that a dictator would attempt to co-opt a popular religious movement for his own ends to lend legitimacy to his power? AND that he wouldn’t necessarily believe in the aforementioned religious movement?

          Simply too much to swallow.

  8. There was a time when Reason lived up to its name, this screed does not. Rather than refute it I will point out that the author never presents any actual evidence or provide any context. For instance is there any clue that Roberts had already been nominated when Cruz promoted his confirmation, or his subsequent statements that he would have nominated someone else? If you are going to provide commentary during a political campaign, try a little objectivity or at least humility. Do we really need another snarky blog?

    1. There was an op-ed in National Review by Mr. Cruz promoting the confirmation of Justice Roberts (who had already been nominated). I didn’t read it because a 10 year old opinion piece by a person with no power to affect the outcome of an event is not especially relevant (the Solicitor General of Texas doesn’t get to vote on the confirmation of a Supreme Court Justice).

  9. What he really wants is a justice that will agree with what he believes the law should be.

    Which makes him different from which president/candidate ever?

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  12. The republicans are going to complain, whine, and show some type of bravado, but the spineless idiots will ultimately give obama what he wants. When was the last time they opposed him after making noise on a big issue?

    I vote for Janice Rogers Brone: “Government is the only enterprise in the world which expands in size when its failures increase.”

    “…what’s interesting about the Brown concurrence isn’t that it expresses her long-held opinion that the Supreme Court has been dead wrong about economic liberty for 80 years, and that a return to the libertarian regime of the Lochner era, is overdue.”
    http://www.slate.com/articles/…..930s_.html

    1. Imagine a libertarian judge on the SC. It would be the end of the world as we know it, that is according to the neo cons and socialist democrats (I’m assume by saying socialist democrats there are at least a couple that aren’t).

  13. During the court’s last term, Roberts voted the same way as Scalia 90 percent of the time?almost exactly as often as Clarence Thomas did.

    Can we please for the love of God stop abusing statistics like this? Sotomayor voted with Scalia 72% of the time. Kagan voted with him 74% of the time. There’s lots of cases that the judges vote together on.

    1. Exactly. People are oh so surprised that Scalia and Ginsberg were friends. But the bulk of the Court’s work is not with clearly ideological issues; it is with stuff like the application of res judicata in administrative proceedings, whether this or that court has personal jurisdiction, and what bank of the river a boundary between two states is located.

  14. Another idiot that claims to know what conservatives “really” want or think rather than what they clearly stated. Chapman is peddling BS as usual.

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  18. Conservatives like Cruz fancy themselves as opponents of judicial activism. If you read Orrin Hatch’s questioning of Roberts during the confirmation hearings you will read Roberts railing against the “Loughner” decision and casting it as the paradigmatic case of judicial activism. Roberts, like Bork and Holmes, takes the position that judges should allow legislative majorities to get their way most of the time.

    The intent of the conservatives was to get a justice that would protect the Defense of Marriage Act and hopefully, in their eyes, revisit Roe v Wade and reverse it. What they got was exactly the judge they wanted, one who would let legislatures run wild but the problem was they didn’t want ObamaCare and that turned out to be the law that Roberts protected.

    Roberts did exactly what he was chosen to do only he did it at what conservatives regard as the wrong time.

    Rand Paul was the only candidate that understood that judicial restraint was a bad idea. He even spoke to the Heritage Foundation, the home of conservative judicial restraint, on the subject in an attempt to convince them that judicial activism was their friend. Paul was eloquent and convincing. Too bad the debates never took on any serious issues. He would have done much better.

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  21. “What he really wants is a justice that will agree with what he believes the law should be.”

    No, that’s just a case of Proggy projection.

    ” But flag-burning is not speech?only a form of communication?and the opinion joined by Scalia made no attempt to prove the framers thought it was. ”

    Uh huh. I guess you might think so if you’re intellectually dishonest and desperate to concoct your bogus argument.

    Scalia did not “attempt to prove the framer’s thought it was” because it’s obvious to anyone with a brain that flag burning is political speech, the prime form of speech the first amendment was targeted to protect.

    “read an ambiguous constitutional provision as creating a substantive right that the court had never acknowledged in the more than 200 years since the amendment’s enactment.”

    You didn’t appear to notice that this is not an originalist argument, nor does it take into account the 14th amendment and the incorporation of “privileges and immunities” into constitutional protection from all levels of government under the jurisdiction of the federal government.

    Really, if you wanted to find Scalia contradicting originalism, see Gonzalez v. Raich. People aren’t always consistent. Duh.

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  24. Everyone wants a Justice that agrees with his interpretation of the law. I know I do. Why should Cruz be any different?

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