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

Justice Holdfast is worried for his country. New forces are transforming Reagan's morning-time nation into something he does not recognize. Very little stands in the way of these post-Reagan forces. And yet, no matter how many victories they win, they keep complaining that they need more.

Twice now the people have awarded the presidency to this inexperienced, shadowy figure, Barack Obama -- rejecting first an iconic American war hero, and second a brilliant, successful business executive. And yet, remarkably enough, Obama and those around him are neither grateful nor satisfied. In 2008, Obama was the first presidential candidate ever to reject the matching-funds system set up after Watergate. Poor naïve John McCain was simply drowned by Obama's wealthy Hollywood allies, and by "nonprofit" groups like, financed by mysterious figures like George Soros.

Justice Holdfast is proud that Citizens United has helped to ever-so-slightly level the playing field by allowing private individuals and organizations to use their free-speech rights in exactly the way that MoveOn and the labor unions use theirs. The chief justice had wanted to move more slowly. But Justice Holdfast perceives that time is running out. 

Once again in 2012, Obama and the Democrats more than matched the Republicans in fund-raising.  For all their complaints about super PACs, they won the money race and the election. Not only that, liberal and gay-rights groups dominated the ballot-measure results.  And still they complain about being unfairly picked on!  Whether it is a chicken restaurant chain or a white-shoe law firm, they vilify and intimidate anyone who dares to disagree. 

For months before November, liberals and Democrats protested any mild attempt to secure the integrity of the vote. Those who want a voter to show a driver's license, they said, are racists. (Holdfast doesn't know anyone who doesn't have a driver's license; do these people really exist?) Yet for all their whining, on election day, the liberal voters and minorities inundated the booths. Holdfast isn't saying that anyone did anything wrong. But the whole thing is unsettling, and it makes him very skeptical about all these cases in which the administration claims that local officials are somehow hostile to the right to vote.  

If there is hostility, surely it is coming from this administration -- against the states, against the ordinary American, and against America's majestic constitutional design. The Affordable Care Act trampled all barriers between what the late Bill Rehnquist liked to call "what is truly national and what is truly local." The individual mandate was a naked transfer of wealth to private hands, and of power to federal bureaucrats. The Medicaid provisions treated the state governments -- the favored children of the Founding Fathers! - -like federal servants.  

In the health-care dissent, Holdfast and his colleagues described the Commerce Power as potentially "the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane." Technically, that quote from Hamilton was intended to ridicule people who distrusted Congress; Hamilton thought it was ridiculous to fear that Congress would become a monster. If he were alive today, he'd be appalled, and anyway the quote was too good to leave out. It's perfectly fair, as far as Holdfast is concerned: Congress is a greedy, overweening, corrupt collection of hacks concerned only with rewarding their contributors and winning re-election. Holdfast is profoundly glad that the court -- unlike most other Supreme Courts in history -- has no former members of Congress among its ranks. It would be hard to fulfill the Court's proper role -- as perpetual censor and limiter of Congress -- if some blowhard senator or representative were in conference blathering on about the legislative process.  

Justice O'Connor had held elected office, and it showed. The poor woman was always trying to compromise, to make everybody happy. The only justice with any history of exposure to Congress these days is that fellow Breyer. What a convivial companion he is -- witty, erudite, so wonderfully good-natured! Of course, he is one of the elite -- the son-in-law of an English lord -- hardly one of the people Holdfast seeks to defend.  

And besides, Holdfast has no idea what he is talking about most of the time.

All told, it is not morning in America. The shadows are falling -- centralism, statism, social dissolution, unfettered democracy, and demagogy. Yet the Republic has seen dark days before. It was for times like this that the Founding Fathers established this honorable court, and as long as it sits, the true America and its Constitution will have a faithful guardian in Justice Holdfast.  

Presidents come and go. The court abides. 

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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. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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