In June of 1954 during the televised McCarthy hearings attorney Joseph Welch asked a simple question in defense of his client who was accused of having ties to a communist organization: “Have you no sense of decency, sir, at long last?” Suddenly the nation saw through McCarthy and his reign of terror against government officials, artists, authors, and Hollywood came to an end.
It is not often that one person has the opportunity to speak truth to power when it will make a real difference. I can think of three that have come up in this new century:
In 2003 President George W. Bush was on the verge of sending American troops into Iraq to depose Saddam Hussein, a vicious tyrant who terribly abused his people. I think Democrats in Congress mostly knew it was a bad idea, but they were afraid of appearing soft on the issue of national security after the September 11th attacks and voted to approve the attack anyway. Senator Byrd of West Virginia delivered a brilliant speech opposing the war, but he was not in a position where his opposition made a difference. Secretary of State Colin Powell, on the other hand, was in such a position. I believe he knew that the invasion would be a catastrophe, and his speech and possible resignation might have swayed Bush.
In 2016, following the death of Justice Scalia, President Barack Obama appointed Merrick Garland to the Supreme Court. Senate Majority Leader Mitch McConnell said that because of the upcoming election, he would get no hearing. At the time, Chief Justice John Roberts might have spoken out, saying that while the Senate was not required to approve a president’s nominee, the Constitution required that he get a hearing. It might not have put Garland on the Court, but it would have reminded us that our system depends on public officials following law and tradition.
On Jan. 6, 2021, Donald Trump incited hundreds of his MAGA followers to the Capitol in a vain attempt to prevent certification of President Joe Biden’s victory in 2020. Every member of Congress knew what a scary and violent day that was, and Minority Leader Kevin McCarthy gave a speech condemning the attack. In a matter of weeks, however, sensing that he might achieve a Republican victory in the 2022 midterms and thus become Speaker of the House if the party didn’t break with Trump, he went to Mar-a-Lago and made his peace with the man. Senator McConnell voted to acquit Trump in his second impeachment trial (and then gave a ridiculous speech recognizing his guilt). If those two men had been willing to publicly call Trump the traitor who he is, recognizing the truth of his attempted overthrow of the government, he might have been relegated to the dustbin of history where he belongs.
Today we are presented with another such opportunity. Last week, the Supreme Court, in a rare display of fealty to the Constitution, struck down Trump’s tariffs, reminding him that the power to levy taxes (and tariffs) is vested in Congress, not the president. Trump’s response was a press conference in which he not only expressed his disappointment but insulted the Justices who voted against him, calling them “fools and lapdogs… for the radical left Democrats… and foreign interests.” He then issued an order imposing new tariffs using a different law as the basis for his decision. In other words, he spat on the Court with contempt and announced his intention to ignore their decision.
If Chief Justice Roberts really understands and values the institution he leads, he should be furious, and he needs to speak out. The president needs to be reminded that Roberts’ institution is called the Supreme Court because it has the last word on matters of national governance! He needs to be reminded that if he wants to impose tariffs he needs to go to Congress to get it done. And Republicans in Congress need to be reminded that they took an oath to uphold the Constitution and it’s time for them to start taking it seriously and start exercising the power vested in them. While he’s at it, Roberts also might remind Congress and the president that the Constitution requires approval from Congress before he decides to attack a foreign nation such as Iran.
Generally Supreme Court justices don’t go around giving speeches, but these are not normal times. Let’s recognize that we are in a constitutional crisis. John Roberts is in a position to do something about it.
Joseph Blumenthal lives in Northampton.