Niemöller In The Time of Roberts

The Continuing Repurposing

First Appeared in The Progressive Populist

“First they came for the Communists
And I did not speak out
Because I was not a Communist
Then they came for the Socialists
And I did not speak out
Because I was not a Socialist
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist
Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me” — Lutheran Pastor Martin Niemöller on the Nazis

First they came in 2008 to allow unrestricted, unlicensed handguns in District of Columbia v. Heller, and the conservative members of the Supreme Court spoke out. Antonin Scalia, who wrote the opinion that discarded 200 years of court precedent on militias and guns and civilian regulation, reasoned, “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” He wrote this while sitting in a building where guns, replica guns, electric stun guns, ammunition, martial-arts weapons and devices, and fireworks, knives of any size, and any pointed objects, razors, and box cutters are all prohibited.

Then they came in 2010 to allow corporations to flood politics with unlimited campaign contributions, in Citizens United v. Federal Election Commission, and the conservative majority of the Supreme Court spoke out. Associate Justice Anthony Kennedy, who wrote the opinion — and one wonders if he did so without breaking into laughter — reasoned, “Independent political spending” did not present a “substantive threat of corruption.”

Then they came in 2013 to gut civil rights, in Shelby County v. Holder, and the conservative majority of the Supreme Court spoke out. Associate Justice Clarence Thomas, who wrote a concurring opinion, said that Congress had failed to demonstrate “current needs” for keeping close ties on the states with the most egregiously anti-civil-rights legislation. (According to the Brennan Center for Justice, since Shelby, 29 states, predominately those that have always tried to deny civil rights, have added 94 restrictive voting laws.)

Then they came in 2014 for the right of women in the workplace to control their own bodies, in Burwell v. Hobby Lobby, and the conservative majority of the Supreme Court spoke out. Associate Justice Samuel Alito wrote, “Protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga . . . protects the religious liberty of the humans who own and control those companies,” which did not, evidently, include the humans who have uteri and who work for the humans who own and control these companies.

Then they came in 2015 for those who thought coherent and sane boundaries in a representative democracy were a good thing, in Rucho v. Common Cause, and the conservative majority of the Supreme Court spoke out. Chief Justice John Roberts wrote that “while partisan gerrymandered districts may be incompatible with democratic principles,” he ruled that federal courts were going to pass on reviewing them because it was better just to allow politicians to manipulate their legislative districts than to have courts tell them they can’t.

Then they came in 2022 for race-based affirmative action, in Students for Fair Admissions Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions Inc. v. University of North Carolina et al., and the conservative majority of the Supreme Court spoke out. Chief Justice John Roberts wrote that encouraging such interests was “plainly worthy, but inescapably imponderable.” Associate Justice Clarence Thomas, a graduate of Yale, who voted with the court’s majority, was admitted, according to the school, “under an explicit affirmative action plan with the goal of having blacks and other minority members make up about 10 percent of the entering class.”

Then they came in 2022 for women who sought control of their own reproductive freedoms, in Dobbs v. Jackson Women’s Health Organization, and the conservative majority of the Supreme Court spoke out. The lone conservative woman on the court, Associate Justice Amy Coney Barrett, believed that women no longer needed access to abortion because most states now provide women with “safe” places to drop off their unwanted newborns, and that, she added, would “take care of the problem.”

Then they came in 2024 for the agencies that make the federal government function, in Chevron v. Natural Resources Defense Council, and the conservative majority of the Supreme Court spoke out. Chief Justice Roberts wrote that “courts must exercise their independent judgment and may not defer to an agency interpretation of the law simply because the statute is ambiguous.” To give you some indication how far the Court has moved in this matter, in 1984, the Court ruled 6-0, with three justices recusing themselves — and weren't those the days that judges did that when conflicts of interest appeared — that judges should play a limited, deferential role when evaluating the actions of agency experts.

Then they came in 2024 for those who just wanted to pursue justice for the criminal acts of a president, in Trump v. United States (and is the name of the case just perfect?), and the conservative majority of the Supreme Court spoke out. Chief Justice Roberts wrote that no president is above the law but then spent the rest of his opinion celebrating why a president, in fact, is, including this gem: “. . . in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

And when they come for the conservative majority of the Supreme Court — and they will — for not being conservative enough, will there be anyone left to speak for them? Will anyone even want to?

(Special thanks to Garrett Epps, formerly the Supreme Court correspondent for THE ATLANTIC, who teaches at the University of Oregon Law School; Peter Shane, a constitutional law scholar currently resident at NYU who writes and podcasts for both academic and general audiences about public law issues, especially controversies concerning the presidency; and Tamara Piety, a First Amendment scholar and Affiliated Fellow at Yale Law School’s Information Society Project for their invaluable help on this piece.)