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Chief Justice Roberts to the Rescue?

Or, how the relationships between conservative idealism and realism may serve the public good

“I used to think that principled Republican leaders held the key to stopping Trump. At some point, I thought (I hoped?) that they would finally say no to the absurdities. But with the results of the election in, this seems to be highly unlikely.”

I wrote this last week, but almost as soon as I did, I had second thoughts. I read an early draft of Peter Dreier comprehensive, “What Should American Progressives Learn From the Mid-terms?” in which he thoroughly demonstrated the depth and breadth of the Democrats’ victory in the elections. Perhaps given the dimensions of the losses of the Republicans, at least some of them concerned with their own political survival may choose to distance themselves from Trump, in my terms, taking up the conservative flank of the radical center. Their realistic appraisal of their political interest, as they seek to ensure their own reelection, may provide the opportunity to be true to the principle of defending the Republic from a narcissistic authoritarian and his enablers.

I find it disappointing that such raw electoral calculation is necessary. To quietly observe the dismantling of democracy and the escalation of repression and suffering (let’s not forget what is happening on our borders and in Yemen) is to be responsible, to be morally implicated.

Perhaps, I tend to overestimate the role principles play in politics. In a more somber mood on this frigid Friday morning in New York, I’ll consider the relationship between political principles and realism as variable, and as a basis for hope.

I would think that anyone who thought about the culture that provides the moral infrastructure of democracy and liberty, about the fate of the earth, avoiding war and environmental disaster, who has some concern about human rights and decency, would know that Trump must be opposed, that principle must be the priority. I believe that electoral interests should be secondary, though I know they haven’t been. Now, with a different political calculus, conservatives may be coming around.

Both the form and the content of Trump’s official statement on standing with Saudi Arabia should convince everyone, including not only his opposition, but also loyal Republicans, that he is an enemy of democracy and democratic ideals. If you haven’t read it, do, in full. Its crass pursuit of interest, its complete disregard for truth and principle, its kowtowing to authoritarian assassins, and its simplistic formulations reveal that this is one official statement that the President wrote himself. The amoral authoritarianism, absent even a gesture to idealism, is authentic and dangerous. Even the very conservative editors of The Wall Street Journal were scathing in their criticism, noting that he “made no mention of America’s values.”

Enter Chief Justice John G. Roberts Jr.. When Trump denounced a ruling against his asylum policy by an “Obama Judge,” the Chief Justice defended the independence of the judiciary in an interview. Roberts declared:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges … we have … judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

I found this quite heartening. It confirmed an intuition I have been sharing with friends and family in the past couple of weeks. I have been asserting and half believing that the beginning to the end of Trumpism will not come from Democratic or Republican politicians, or from “the resistance” unassisted, but from judges appointed and confirmed by Republicans.

To my dismay, Republican politicians have lacked the courage to stand up to Trump, but judges with life tenure may be in an easier position to make a difference. There is less tension between their convictions and their concern for their interests. Roberts’s standing as the primary figure of an independent judiciary, set apart from the political calculations of the moment, requires that he appears to adjudicate the law apart from political calculation. His interests and ideals reinforce each other. Even the most conservative judges are in a similar situation.

And such judges have civic and intellectual support. Within the bastion of conservative judicial philosophy, The Federalist Society, Trump’s assaults upon the rule of law have been criticized. A new group, Checks and Balances, dedicated to defending the fundamental principles of the republic when attacked by the administration, has been formed. When Trump orders the deployment of the military against “the caravan,” when he moves to undermine Robert Mueller’s independent investigation, when he appoints an acting Attorney General who seeks to undermine the independence of the Department of Justice, and publicly questions Marbury v Madison, the classic case that legally sets the precedent for the power of judicial review, when he attacks the freedom of the press, there are now conservative voices who will be heard. There are grounds to believe that “Trump Judges” may very well check the abuses of Trump and Trumpism.

I am not suggesting that those of us on the left should, thus, just sit back and let the right control itself. Of course not. I am simply highlighting a democratic opening. When political conflict is starkly between the forces of good versus the forces of evil, between the democrats and the authoritarians, the political prospects for change apart from civil war are quite dim. I see some light on the near horizon, as ideals among conservatives are revealing their power over “realistic” political calculations that have been undermining democracy in America.

I am not an optimist, even though many of my readers, students and colleagues think I am. They mistake my search for a possible better future, for a belief that the better future is likely. In the last two years, I have despaired, as most of my commitments have been undermined at home and abroad. Not Thanksgiving, but foreboding defines my sensibility over this Thanksgiving holiday weekend. But as some on the right seem to be finding their critical voices, using broadly accepted democratic principles to move against authoritarian realities, I think we may be observing a significant basis for hope. They will still be my political opponents, but not my enemies, and in the defense of democratic possibility, my colleagues.

John Roberts is not coming to the rescue, but he may be opening the door to a post Trump era.

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Jeffrey C. Goldfarb

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