A specter is haunting the Supreme Court. The unruly ghost of the French Revolution—the bane of reactionaries for the last two centuries—continues to trouble the judges who dominate the most autocratic institution in America. The modern politics of left and right were born in the overthrow and eventual execution of Louis XVI, famously beheaded in 1793. For the left, the revolution was the stirring moment where the masses entered into history, ceasing to be subjects owing obedience to a capricious monarch and becoming citizens seizing control of their destiny. For the right, the French Revolution remains the original sin of modernity, the opening of the era of mob rule and revolutionary terror.
Strikingly, the justices on the US Supreme Court continue to echo in explicit terms the polarized politics that grew out of the storming of the Bastille. In decrying the evisceration of affirmative action in higher education in the Students for Fair Admissions v. President and Fellows of Harvard College case, Justice Ketanji Brown Jackson sarcastically noted, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.” The phrase “let them eat cake” refers of course to the famous apocryphal remark by Marie Antionette supposedly illustrating the haughty disdain the French queen had for the poor.
Rather than deny how much they have in common with the imperious French king whose supercilious governance provoked a popular uprising, our right-wing justices have repeatedly embraced the same implicit metaphor used by Justice Brown—only reversing the valence to stress the evil of challenging aristocratic rule.
In attacking the Biden administration’s plan to use power it had been granted by Congress to “modify” student debt to offer relief, Supreme Court Justice John Roberts made a telling historical analogy: “The Secretary’s plan has ‘modified’ the cited provision only in the same sense that ‘the French Revolution “modified” the status of the French nobility’—it has abolished them and supplanted them with a new regime entirely.” This analogy obviously speaks to something deep in Roberts, since he had used the same expression earlier this year in oral deliberations.
While Roberts intends to make a point about the scope of the word “modify,” his underlying assumption is that anything as drastic as the French Revolution was undesirable (never mind the fact that the American Constitution itself forbids titled aristocracy). The analogy is at once overblown (debt relief is a far cry from abolishing aristocratic rule) and politically perverse (there is nothing wrong with either debt relief or abolishing aristocratic rule).
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In earlier debates over the abortion rights that had once been enshrined in Roe v. Wade (1973), Justice Roberts and Justice Clarence Thomas engaged in an argument over the best interpretation of Edmund Burke’s counterrevolutionary tract Reflections on the Revolution in France (1790), a work that includes a famous panegyric to Marie Antoinette. In the June Medical Services v. Russo decision (2020), regarding state regulation of abortion clinics, Roberts and Thomas each tried to bolster their arguments with invocations of Burke. Both jurists opposed reproductive freedom; the tactical dispute was over how to end it.
For Roberts, the lesson of Burke is that precedent had to be respected—if only as a decent drapery to legitimize the system. He urged the justices to let Roe stand while continuing to whittle away at it, so it became a meaningless ruling. The subtext of his argument was that the court needed to tread carefully lest it provoke a popular backlash (as in fact happened when Roe was overturned two years later in the Dobbs decision).
In responding to Roberts’s citation of Burke, Thomas quoted a passage in Reflections on the Revolution in France where the philosopher insisted that true traditions are the “inheritance from our forefathers” demonstrating “reverence to antiquity.” For Thomas, both Roe and the earlier Griswold decision of 1965 (which legalized birth control) must be rejected as not part of the genuine “inheritance from our forefathers.”
The fact that Burke is the North Star guiding both Roberts and Thomas, even in their arguments with each other, is proof that this court is not just conservative but actively counterrevolutionary. For Thomas, America has been cursed by at least three pernicious revolutions: the administrative state created by Woodrow Wilson’s New Freedom, the expansion of the welfare state under Franklin Roosevelt’s New Deal, and the sexual and civil rights revolution of the 1960s that flourished under the presidency of Lyndon Baines Johnson. Thomas’s jurisprudence is best understood as an attempt to roll back all three revolutions. His goal is to restore America to the supposedly pristine liberty of 1915.
America may be a republic, but these reactionary judges are trying to restore monarchism without a monarchy. Though the US has dispensed with a formal crowned ruler, kingship can still serve as a model of arbitrary hierarchy in many institutions: the patriarchal family, the domineering employer, the elite university where children of alumni get special access even as affirmative action is eviscerated.
The courts themselves can also serve as an unofficial monarchy, with judges enjoying lifetime employment free from checks by the more plebeian branches of government. We can certainly see aristocratic insouciance in the habit that our reactionary judges have developed of cavorting on luxury vacations with plutocrats without feeling the need to acknowledge any potential conflict of interest.
The social vision of the courts manifests itself in both the personal corruption of the judges and in the political thrust of their decisions: eviscerating the rights of women, clamping down on the social mobility that affirmative action provides to marginalized racial and ethnic groups, rolling back long-held labor rights, and curtailing the regulatory and policy-making power of Congress and the president. Virtually every major decision by the Roberts court has been designed to shore up hierarchy.
In a remarkable dissent on Biden v. Nebraska (the student debt case), Justice Elena Kagan accused the court’s majority of overstepping their constitutional power. According to Kagan,
That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business—to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.
Kagan added that the court “exercises authority it does not have. It violates the Constitution.”
Clarence Thomas and John Roberts take their understanding of the French Revolution from Burke. They’d do well to look at alternative points of view, notably that of the founding father Tom Paine, an eloquent foe not just of monarchism but of all arbitrary government.
There’s another, more populist source, who might also serve as a good corrective to Burke. Mel Brooks, who celebrated his 97th birthday last week, gave an indelible performance as Louis XVI in his History of the World, Part 1 (1981). As the doomed king, Brooks was a self-satisfied, exploitive sex pest, contemptuous of the poor and quick to demand the favors of any woman unlucky enough to cross his path. Brooks’s Louis XVI smugly kept justifying his actions with the motto, “It’s good to be the king.” Whether this portrayal was historically accurate or not, Brooks captured the sheer gross predation that is an inevitable accompaniment of arbitrary rule.
Right now, John Roberts and his fellow judicial reactionaries might console themselves with the thought that it’s good to be the king. But it’s not good to be the subject of the king. And, like Louis XVI and his aristocratic courtiers, the judges might also discover that once the public starts rising up, the pleasures of being king can quickly come to a sharp end.
