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.

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 MoveOn.org, 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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