“One Vote Away serves as a useful primer on some of the great constitutional issues of our day, while also proving that legal judgment and political judgment are separate matters.”
Why are American politics so dysfunctional? Such a simple question spawns myriad answers, and most of them (correctly) point to the effects of decades-long structural forces on our politics. But if macro-level developments have set the stage for our political dysfunction, the poor leadership of the American political class certainly exacerbates it.
Part of the issue, surely, is incompetence. One need not look further than certain aspects of the Trump administration’s Coronavirus (COVID-19) response or to Senator Mazie Hirono’s questioning of President Trump’s Supreme Court nominees to witness the unfortunate phenomenon of bipartisan incompetence and its corrosive effects on the body politic. However, the problem is not entirely—or even principally—incompetence, considerable though it is. There are plenty of intelligent, learned political leaders who knowingly play into the most destructive tendencies of their own tribe—whipping up unfounded hysteria, leveraging grievances, and knowingly peddling distortions of the truth for the sake of political gain.
Senator Ted Cruz has long fallen into this category. A former Supreme Court clerk to Chief Justice William H. Rehnquist, Senator Cruz is incredibly bright and is a gifted litigator. Indeed, Senator Cruz’s intelligence and legal acumen are on full display in his recent book, One Vote Away: How a Single Supreme Court Seat Can Change History. Senator Cruz relates how a number of 5-4 Supreme Court cases (in many of which he played an active role) were crucial in either protecting or debasing a number of Americans’ most fundamental constitutional liberties.
Senator Cruz’s constitutional and legal arguments in One Vote Away are, on the whole, quite persuasive. Take the case of Van Orden v. Perry (2005), a case revolving around the constitutional permissibility, under the First Amendment’s Establishment Clause, of a Ten Commandments monument erected on the grounds of the Texas State Capitol in 1961. At the time that the legal challenge arose, Cruz was serving as Texas Solicitor General, and current Texas Governor Greg Abbott was the state’s Attorney General.
Instead of writing a book simply showcasing the legal talents he put to use in Van Orden and advancing his persuasive interpretations of American constitutional law, Senator Cruz takes it a step further.
Senator Cruz notes how left-leaning jurists have long misread an 1802 letter from Thomas Jefferson to the Danbury Baptist Association. These jurists use Jefferson’s language regarding a “wall of separation” between church and state to argue that the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”) requires “the removal of God from the public square.” But this is a woeful misinterpretation of both Jefferson’s language and the Amendment itself. The point is to bar government actors from interfering with, in Senator Cruz’s words, “our individual right to choose our own faith.” As such, the Establishment Clause and the Free Exercise Clause are two sides of the same coin: religious liberty.
Thus, allowing religious symbols and arguments in public fora and on public grounds certainly does not run afoul of the Establishment Clause. Such symbols are not harbingers of state-established churches or theocratic reign. Rather, they attest to the immensely important role that religion has played in American history, and how it strengthens the civil society, which founders like John Adams knew was essential in undergirding the American constitutional order. As Senator Cruz writes, “acknowledging faith, God, and our Judeo-Christian heritage is entirely consistent with religious liberty—and, indeed, protects every individual’s freedom of conscience.”
Then-Solicitor General Cruz and then-Attorney General Abbott proved successful in withstanding the challenge to the Ten Commandments display under dispute in Van Orden, eking out a 5-4 victory at the Supreme Court. They not only pushed these substantive historical and constitutional arguments in their briefs and oral argument before the Court, but they also gained the upper hand by paying close attention to the precise details of the case (unlike their opposing counsel).
Instead of writing a book simply showcasing the legal talents he put to use in Van Orden and advancing his persuasive interpretations of American constitutional law, Senator Cruz takes it a step further. And this is where he moves away from using his impressive breadth of constitutional knowledge and experience to inform and persuade his fellow citizens into using that knowledge and experience unnecessarily to frighten his fellow citizens.
After describing how carefully he and his team crafted their briefs in Van Orden, Senator Cruz speaks of a “widespread assault on religious liberty” in contemporary America. Senator Cruz is attentive to language. Surely, he knows what he is doing when he employs such language. Is there really a “widespread assault on religious liberty”? While there are surely innumerable efforts always in the works to chip away at religious liberty, “its walls are high and strong,” in the words of The Dispatch’s David French (a former religious liberty litigator himself).
Contrary to Senator Cruz’s assertions, Americans’ free exercise rights are not on the precipice of being wiped out. Yes, there have been a number of closely decided, 5-4 Supreme Court cases that have had considerable effects on the scope and strength of religious liberty in this nation (atop Van Orden, Senator Cruz highlights the highly consequential 2014 case of Burwell v. Hobby Lobby, for example). However, the strength of the free exercise right has actually been enhanced in the past few decades. Moreover, the security of this fundamental right is ultimately dependent on the political and cultural milieu that we construct through our democratic discourse. Rather than being dependent on variable Supreme Court majorities, religious liberty would be far safer under the protection of a widespread political and cultural consensus that attests to its immense importance. It seems questionable that demonizing the other side’s intentions as nefarious and fundamentally anti-religious is the most logical path towards building such consensus.
Senator Cruz’s careless rhetoric characterizing American religious liberty as an endangered species pervades the entirety of the book. The underlying premise of One Vote Away is that “many of our precious liberties and freedoms hang…precariously in the balance” because they hinge on a single swing vote on the Supreme Court. This is less of a factually accurate observation from Senator Cruz and more of a political tactic to scare his fellow conservatives into heavily weighing the Court’s makeup when considering their votes for presidential and United States Senate candidates. After all, he writes, the stakes are dangerously high:
“The Supreme Court hangs in the balance. Five justices on either side can preserve our liberties or destroy them. Five justices on either side can secure our cherished structural freedoms or destroy them. Five constitutionalist justices can ensure the American experiment continues to thrive, but five liberal activist justices could fundamentally transform our Nation. And far more often than we should be comfortable with, we are just one vote away from losing these fundamental rights and freedoms. For ourselves and our posterity, we have a solemn obligation not to let that happen.”
Employing rhetoric such as this while advancing sound arguments as to why certain Supreme Court majorities should have prevailed or not, the Ted Cruz who emerges from One Vote Away is two-pronged. On the one hand, he is a gifted lawyer and constitutional scholar. On the other, he is impacting our politics in a most negative manner thanks to his willingness to stoke apocalyptic fears among conservatives of liberals’ plans when it comes to their liberties, their way of life, and our constitutional structure.
I wish Senator Cruz had decided otherwise. We certainly do need more judges like a would-be Judge (or Justice) Cruz…
Thanks to this dichotomy—gifted lawyer and divisive politician—it is rather frustrating to read the tidbits in One Vote Away regarding the various offers Senator Cruz has turned down to become a member of the judiciary. He notes that President George W. Bush’s administration had gauged his interest in filling a seat on the Fifth Circuit Court of Appeals, and President Donald Trump personally asked him whether he would be interested in being considered to fill a Supreme Court vacancy himself. Senator Cruz said no to both. He writes:
“I don’t want to stay out of policy and political fights. I want to lead them. I want to fight for lower taxes and regulations, for more jobs, for economic growth, for individual liberty, for a strong national defense. And, in our constitutional system, the Senate is the right place to do that. I care deeply about having principled judges on the bench—and I want to be part of nominating and confirming hundreds of them hopefully for many years to come—but I don’t particularly want to be one of them.”
I wish Senator Cruz had decided otherwise. We certainly do need more judges like a would-be Judge (or Justice) Cruz: Jurists who have deep knowledge of and faith in our Constitution and who apply the law as written, no matter the outcome. On the other hand, we most definitely do not need any more politicians like Senator Cruz. We have enough intelligent officeholders who are all too happy to throw meat to their base. We have enough elected officials demonizing the other side and “nutpicking,” sowing undue fear among their fellow partisans and unnecessary contempt for those Americans with whom they disagree.
Senator Cruz knows better. He is far smarter, more competent, and more learned—not only in law but also in American history, principles, and values—than partisan grandstanders such as Rep. Matt Gaetz and Rep. Alexandria Ocasio-Cortez. Yet he is following in their footsteps to a significant extent. He is adopting apocalyptic rhetoric that is unmoored from reality and that drives our politics further into the pits of baseless fears and frayed bonds of commonality. Despite our deep and numerous differences, we are all fellow citizens, engaged in a twisting, turning, centuries-long experiment in self-government, where no victory nor defeat is final. Senator Cruz seems to have forgotten this basic insight (a small-c conservative insight, I would add).
One Vote Away serves as a useful primer on some of the great constitutional issues of our day, while also proving that legal judgment and political judgment are separate matters. It underscores Senator Cruz’s exceptional legal prowess, as well as how typical of a politician he is in this age of pandering, bloviation, and division.
Thomas Koenig is a recent graduate of Princeton University and will be attending Harvard Law School in the fall of 2021. He can be found on Twitter @TomsTakes98
