Meet 'Justice Holdfast': Inside the Mind of the Court's Conservative Majority

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The way Holdfast sees it, it's not morning in America.

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Darryl Webb/Reuters

"One thing I learned from my father," Michael Corleone tells Tom Hagen in Godfather 2, "is to try to think as the people around you think." 

We could all learn from Vito Corleone. It's hard for anyone who isn't a judge to think as judges think. In public discussion of the Supreme Court, figures on both sides of the political divide routinely analyze the Justices' decisions as if they were mere tactics in the political battles of the moment. Justices do have their own political views, which shape their actions. But they aren't political figures like the ones we encounter in elective politics. Probably the most useful thing a court-watcher can do is to assume, until it is proven otherwise, that a judge is trying to follow the law and the Constitution as he or she sees it.

But how does the majority on the current Court see it?

Let me introduce Associate Justice Lemuel Holdfast, one of the Court's five-member conservative majority. Justice Holdfast is fictional: He's my composite imagination of a sincere, hard-working, conservative justice who is trying to do the right thing by the Court, the Constitution, and the nation.  He is not based on any inside information either: all I know about the Justices is what they write in their opinions, what they say in their public appearances, and what they ask at oral argument.

Justices live in their own world -- a world that is a good deal more prosperous, better educated, and less racially and sexually diverse than the one on the other side of First St. N.E. The Justices' world consists of brilliant, deferential law clerks from the finest schools; brilliant, deferential lawyers from the finest firms; brilliant, deferential professors from the finest faculties; and the Justices' social friends, who tend also to be deferential and well-to-do. 

That world calls to mind an old joke of Will Rogers's, who was imagining what went on inside Calvin Coolidge's head:  "Everybody I come into contact with is doing well; if they don't, they don't come into contact with me." The justices know there are public concerns, but those concerns often reach them in an indirect and distorted form. That's especially true today, when the center of gravity of the Supreme Court is much farther to the right of the national center than most people imagine.  

Curiously enough, Justice Holdfast, swaddled in this world of privilege, sees himself as an outsider. He is a man of middle-class background who has risen to eminence by hard work and sheer merit.  He considers himself a representative of people like himself -- the kind of people described in William Makepeace Thackeray's Vanity Fair as "the best.   . . . I don't mean the most virtuous, or indeed the least virtuous, or the cleverest, or the stupidest, or the richest, or the best born, but 'the best,' -- in a word, people about whom there is no question."  These are the people who lose their homes to government economic-development schemes, whose religious faith is mocked by the media, who lose jobs and educational opportunities they deserve to affirmative-action schemes.  

Justice Holdfast's view of the world was shaped most powerfully by his relationship to one man: Ronald Wilson Reagan. (Of the five conservatives, three -- Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito -- were appointed officials in the Reagan Administration. Justice Scalia had been a functionary in the Nixon and Ford administrations and was appointed by Reagan first to the D.C. Circuit and then to the Supreme Court.  Justice Anthony Kennedy, as a Sacramento lawyer, worked closely with then Governor Reagan.) 

The shade of Reagan towers over this bench as surely as the shade of FDR did over the Warren Court. Reagan has become a bipartisan American hero, and Reagan's "morning in America" is for Justice Holdfast the unquestioned definition of the best of American life: low taxes, few meddlesome regulations of business, a robust military, environmental skepticism, reverence for the states and their rights, respect for Christianity, and deep suspicion of civil rights and affirmative action programs. 

Despite outer appearances of turmoil -- blustery dissents, seemingly shocking vote shifts -- Holdfast's Court is a good place.  As he sips morning coffee with his clerks -- Ready, Eager, Willing, and Able -- he has every reason to feel good about his life. Some high profile cases may come out in disappointing ways, but on the whole the institution is at peace and there are five votes in almost every case to move the law to the right. The differences within the majority are about how fast, not whether or whither, to move. The court is the branch of government that works -- indeed, in Washington's bonfire of the vanities, it may be the last place where the Founding Fathers' flame still shines.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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