Nothing New Under the Sun

The rumor came back around this year, the way it always does. In Corpus Christi, President Trump looked out at the crowd and said he was thinking about putting Ted Cruz on the Supreme Court. It was not the first time. He raised the same idea with Cruz three times in his first term, once for each vacancy, and Cruz said no three times. Cruz said no again this year, and not gently. His words were “hell no.” There is no open seat. Neither Justice Thomas nor Justice Alito has said he is leaving. On paper, there is nothing here.

And still the idea keeps surfacing, because it was never really about Cruz. It is about a much older habit, and Texans have been living inside the consequences of that habit for more than a century and a half.

The habit is old and simple. A president has a rival, talented and ambitious and in the way. The rival wanted the top job himself and may want it still. So the president does not fight him. He promotes him. He hands him a black robe and a seat on the highest court in the country, where the ambition can be useful instead of dangerous, and where the man will always owe his chair to the one who put him in it. The robe goes on over the campaign suit. The suit never comes off.

We know how this story ends, because we have the receipts. His name was Salmon Portland Chase.

Before Chase ever wore the robe, he wore the suit. In 1861, Abraham Lincoln made him Secretary of the Treasury, and Chase built the machine that paid for the war. The first federal income tax. A system of federally chartered banks required to hold government bonds. The greenback, paper money backed by nothing but declared legal tender by act of Congress. In four years he issued around 2.7 billion dollars in federal debt, forty-one times what the government owed in 1860. He put his own face on the one-dollar bill. And every bit of it rested on one assumption: that the union was permanent, that no state could ever leave, that the government borrowing all that money would be standing to pay it back.

Chase had wanted to be president. He ran in 1856 and in 1860, and Lincoln beat him both times. He never stopped running, working against Lincoln from inside the cabinet until Lincoln finally took his resignation in 1864. Then Chief Justice Taney died. And Lincoln, who was nobody’s fool, did not banish the rival who had schemed against him. He promoted him. He made Chase the Chief Justice of the United States.

Lincoln said why, in plain words. He wanted a Chief Justice who would “sustain what has been done in regard to emancipation and the legal tenders.” He needed the war’s most contested acts blessed from the bench, and Chase was the man who would bless them, because Chase had built them. There was a second reason, and Lincoln’s circle understood it. Ambition left loose in the Senate could split the party. Ambition seated on the Court would die quietly. Put the rival where he does you good and no harm.

Five years later the bill came due. A dull fight over some Texas bonds reached the Court, and Chase used it to settle the largest question in American life: could a state leave the union? The man who had borrowed billions on the promise that no state ever could now sat in judgment of that promise. He did not step aside. He wrote the opinion himself. He ruled that the union was “indestructible,” that Texas had never left and never legally could, and that the bonds his own Treasury had refused to honor were void.

The architect of a financial system that would have collapsed if leaving were legal ruled, from the bench, that leaving was illegal. Every dollar he had printed and every bond he had sold was vindicated in a single stroke, and the man who vindicated it was the man who built it. He was, for all his brilliance and all his service to the Union cause, the warden of a prison he had built himself.

A judge with a stake in the outcome is supposed to step aside. The test is not whether he is actually biased. The test is whether his impartiality could reasonably be questioned. By that test Chase should never have touched the case. He was not a neutral judge. He was a party. And Texas v. White, the one precedent every official reaches for the instant a Texan asks whether this state can govern itself again, is his. That is what stands between Texas and the question. Not the Constitution. An opinion written by a politician in a robe, guarding the work he had done in the suit.

Now look back at Corpus Christi.

Trump has never hidden that he measures himself against Lincoln. He says it from the podium, the greatest since, better than, in that company. Take him at his word. A man who sets out to govern like Lincoln will reach, sooner or later, for Lincoln’s moves, and one of the shrewdest Lincoln ever made was this one. Take the ambitious rival who wanted your chair, and seat him on the Court, where the ambition finally serves you.

Cruz fits the mold almost too well. He and Trump were bitter rivals in 2016, traded the worst insults in the language, and then made their peace, and now Cruz is among the administration’s sharpest defenders. He argued cases before the Supreme Court as Solicitor General of Texas. He has wanted the presidency, and he has not stopped wanting it. Which is to say he is standing just about where Chase was standing when Lincoln reached for the robe. Nothing new under the sun. Ecclesiastes called it long before there was a Texas or a union to argue over.

I am not predicting the appointment. Cruz has turned it down four times, and there is currently no seat to fill. And I am not telling you it would be good or bad for the country, because that is not this movement’s fight, and it is not my point. My point is older than either man.

When they tell you the Supreme Court settled whether Texas can be free, ask who those judges are, and how they got their seats, and what they owed the men who put them there. The seat has always been political. It was political when Lincoln filled it, and the proof is the opinion that walked out of it. The word “perpetual” appears three times in the Articles of Confederation. The men who wrote the Constitution ten years later struck it out, every instance, on purpose. The barrier that keeps Texas from governing herself has never been in the text. It has been political power dressed as settled law. Chase made a baseless political statement from the bench, and people have been calling it a Constitution ever since.

So watch the rumor the next time it comes around, and it will. Watch how a seat on the highest court in the country gets talked about, as a favor, a reward, a way to move a useful man to where he does the most good for the one who moves him. That is not a scandal. That is the ordinary machinery of the federal system, running in the open, the same machinery that produced the sentence Texans have been taught to recite as scripture. Once you have seen how the sentence got written, you cannot unsee it.

The cage was real. The lock was real. But the men who swore the door was welded shut were the same men holding the keys, and they wore their robes over their campaign suits the whole time. Go and look for yourself. The door was never what they told you it was.

Originally published in Texian Partisan.