Budowsky: Chief Justice Roberts warns the Court, the bar and the country

At a time when America is bitterly divided, democratic institutions are challenged at home and abroad, and the Supreme Court shows signs of joining politicians in suffering from declining public esteem, Chief Justice John Roberts is offering a strong warning to the Supreme Court, the American Bar Association and the nation about the sanctity of the U.S. Constitution.

In the latest decision surrounding the controversial abortion law in Texas, Roberts, joined in this opinion by the three liberal justices of the Court, offered a strong dissenting opinion against key aspects of the majority opinion.

The principles behind the Roberts dissent in the Texas abortion rights case raise fundamental legal questions about whether individual states can nullify constitutional rights decided by the Supreme Court, and whether the Supreme Court will lose its unique place as the guardian of constitutional rights and face increasing public disapproval.

The principles behind the Roberts dissent, if they are not highly respected in cases before the court, will have profound political impact in the midterm elections in 2022 and the presidential election in 2024. 

The result could create the equivalent of a constitutional civil war, in which red states pass laws to undermine judicial review of rights that red state leaders disapprove of, including abortion rights, while blue states pass laws undermining judicial review of laws that blue state leaders disapprove of, including gun ownership, as California Gov. Gavin Newsom, a rising star among Democrats, is fairly suggesting.

And if Texas can empower vigilantes to persecute Americans exercising their constitutional rights under settled law, how many other states will empower other vigilantes to persecute other Americans for exercising other constitutional rights?

While the Texas case involves abortion rights, the Roberts warning is that this dangerous trend in recent court discussions could create a powerful and dangerous threat not only involving abortion rights, but endangering any right protected by the Constitution.

Roberts wrote: “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.” And “the clear purpose and actual effect” of the Texas law “has been to nullify this Court’s rulings.”

Quoting from Marbury v. Madison, a defining Supreme Court ruling in the history of American constitutional law, Roberts continued, saying “it is emphatically the province and duty of the judicial department to say what the law is.”

And if state legislatures can nullify decisions of the Court and destroy the rights upheld in those decisions, “the constitution itself becomes a solemn mockery.”

The chief justice warns: “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

Roberts’s warning is that if any state can unilaterally nullify any constitutional right decided by the Supreme Court, there is no constitutional right, decided by any Supreme Court, that is protected from nullification, by any state.

It is extraordinary, profoundly worrisome, and in my view brilliantly correct, for the U.S. chief justice to suggest decisions by a majority of justices could turn the Constitution itself into a mockery.

America is a bitterly divided nation. As the Supreme Court appears to act more political, its approval rating has fallen significantly, to 40 percent in a Gallup poll. Our democracy is facing an aggressive attack against voting rights, fair counting of votes, abuses in reapportionment, a criminal attack against our Capitol, attempted abuses of executive privilege and other critical matters the Court will consider.

If a Supreme Court majority proceeds on the course that Chief Justice Roberts warns against, it would be a national tragedy, a constitutional disaster and a scandal with incalculable legal and political consequences.  

This would set off a race by politicians in state after state to destroy whatever constitutional rights they deplore, further dividing the nation, destroying public confidence in the Court, and endangering our democracy — which is the diametric opposite of the unique role the Founding Fathers envisioned for the United States Supreme Court.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives.