The New York Times’s Linda Greenhouse has a fable to tell. “Suppose a modern Rip Van Winkle,” she writes, “went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.” We agree, though with the caveat that what for Ms. Greenhouse is a dystopia is for us a happy morning.Ms. Greenhouse, the despondent dean of high court scribes, unfolds this fable in an op-ed in the Times entitled “Look at What John Roberts and His Court Have Wrought Over 18 Years.” This follows on the heels of her “Requiem for the Supreme Court,” penned after Dobbs v. Jackson Women’s Health Organization. We’re loyal readers of the Great Greenhouse and have a certain sympathy for her sense of bewilderment after her long slumber. Washington Irving’s layabout misses the American Revolution; upon waking, he declares himself a loyal subject of King George, unaware that the world had been turned upside down at Yorktown. Ms. Greenhouse appears to have missed the judicial revolution in the Second Amendment, abortion, affirmative action, religious freedom, and the administrative state. It is indeed, as Ms. Greenhouse puts it, a “profoundly different constitutional world.”Ms. Greenhouse recalls fondly “how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office.” This was the era of Roe v. Wade and Chevron deference, of a raft of restrictions on the Second Amendment. It was also a time when, in cases like Employment Division v. Smith and Locke v. Davey, the court was less sympathetic to the allied First Amendment causes of religious liberty and freedom of speech. Now, Ms. Greenhouse writes, “by the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it.” It is to be remembered, though, that the Chief Justice himself sided with the court’s liberal wing on a blockbuster voting rights case, as well as in Moore v. Harper, which brushed aside the independent state legislature theory. In both instances he was joined by conservative colleagues. We harbor less nostalgia than Ms. Greenhouse for the days before Chief Justice Roberts took to the bench. Roe, intended to heal division, instead exacerbated it. Roe failed. Administrative deference had begun to encroach on democracy. The Second Amendment was being treated, as Justice Clarence Thomas put it, as a “second class right.” Affirmative action was on borrowed constitutional time and enabling, not eradicating, prejudice. This is through what Rip Van Greenhouse was snoozing. The whole liberal leadership, too, fell into the arms of Morpheus. Meantime, millions upon millions of Americans had grown furious at a court that turned its back on gun rights, the right to life, the right to be heard in real, as opposed to administrative, federal courts, while the government tried to make the Little Sisters of the Poor purchase for their employees insurance to cover abortions.In the fable, Van Winkle awakes to hear of the “rights of citizens — elections — members of Congress — liberty — Bunker’s hill — heroes of seventy-six” all of which are a “perfect Babylonish jargon to the bewildered” sleeper. While he dozed, the “very character of the people seemed changed.” Something of that spirit of ’76 appears to us to have been recaptured by the Roberts court. Millions are joyful to awake, like Rip, a “free citizen” of America.
