Chief Justice John Roberts’s Lack of Courage Is Damaging the Supreme Court, by Dan McLaughlin

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By Dan McLaughlin, National Revie, June 29, 2020

Decisions on abortion and separation of powers demonstrate how good ideas about the law become empty words on a page.


There is a saying — perhaps as old as Aristotle — that courage is the first virtue, because it makes all the others possible. We usually associate courage (or its absence) with leadership by elected officials: There are times when it is hard to stand up for your principles, to stand against your own party, or both. From judges, we are told, the important thing is to follow, not to lead: to have the ascetic self-discipline to apply the Constitution and laws as written, and not to put your own policy preferences above the letter of the law. The right ideas and the right priorities matter more than character. A good brain beats a good heart.

The conservative legal establishment has long been particularly enamored of this ideal: the umpire calmly calling balls and strikes. It is a very important virtue. But it is not the first virtue. An umpire who can be cowed by the crowd will not call the same strike zone for both teams. Without courage, good ideas about the law are just empty words on a page. Without courage, even the clearest-written rights are empty promises, the plainest limitations on power are easily overwhelmed, and the entire project of rule by written law becomes just another hollow formality.

Two of today’s Supreme Court decisions, on abortion and separation of powers, are further evidence of this. Chief Justice John Roberts has yet again shown the absence of courage that has so often undermined his Court. Roberts’s repeated demonstrations of lack of courage are rapidly becoming a threat to the Court itself, and to the conservative legal project.  ….

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