From the delightful Dahlia Lithwick, writing about the massive spasm of outrage aimed at Chief Justice John Roberts in the wake of his decision to join the liberal justices on the Supreme Court in upholding the individual mandate portion of the health care reform bill:
Having given conservatives the sun, the moon, and the stars for seven years, Roberts suddenly finds himself on the wrong side of everyone from the Washington Post’s Marc Thiessen, to the Wall Street Journal’s John Yoo, to presidential hopeful Mitt Romney, who not only returned the chief justice’s class ring and football jacket yesterday, but also vowed to only date future justices who are, well, a carbon copy of Mitt Romney.
I bet Romney will date all of them at the same time. Lithwick also points out that you never see this kind of rage from the left aimed at a liberal justice for a ruling they might consider heretical.
Yesterday at Politico, Josh Gerstein wondered why the left had ignored Kagan, the liberal “turncoat,” and her massive defection on the Medicaid expansion. He singles out Kagan—as opposed to Justice Breyer, who also voted with the conservatives on the Medicaid issue—because everyone always assumed Kagan was in the tank for the Obama administration. Or as Gerstein put it, “The absence of public outrage toward Kagan is particularly notable since she wasn’t parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.” Gerstein proposes several explanations for the left’s silence on Kagan, including the fact that her Medicaid vote may ultimately have limited practical impact and that liberals are giving her a pass for a possibly strategic decision to trade her Medicaid vote for Roberts’ vote on the individual mandate. I don’t think any of his conclusions are wrong, but I do think they paint only part of the picture.
The truth is that liberals have been forgiving the liberal justices their defections for decades. The notion of liberal commentators rising up en masse with threats to impeach and impale a justice for a single decision, as conservatives have done with Justice Anthony Kennedy, Justice Sandra Day O’Connor, and now Chief Justice Roberts, is beyond imagining. When Justice John Paul Stevens voted with the court’s conservatives on upholding a voter ID requirement a few years back—indeed, Stevens went so far as to write the opinion—liberals just chalked it up to his jaunty bow tie.
Why is that? For one thing, the court’s left wing has always been more fractured than the right, and the sense that the four liberals should be acting in perfect lockstep has never really gained any force on the left. Again this term, the pairs that agreed most frequently were Alito and Roberts, and Thomas and Scalia. The court’s liberals tend to be more inclined to flop around, so much so that it no longer surprises anyone when it happens in a single case. For another thing, conservative commentators are quick to use even one-off defections by the conservative justices as ammunition for the next confirmation fight. See for instance Thiessen and Yoo arguing that the real lesson of the ACA challenges is that the next nominee will need to be both further to the right than John Roberts and also far more thoroughly vetted. This isn’t about the right’s anger at Roberts so much as a warning shot about the next justice to be named. Liberals don’t think that way about the court, much less talk that way out loud.
It’s not at all unusual for a liberal justice to “switch sides” on cases, though rarely on one with as much publicity as this one. But I can’t recall anything approaching the kind of vitriol that has been aimed at Roberts from the right after the health care ruling. I think it’s because conservatives have a far more detailed and specific conception of what they expect from their judges — total ideological purity, essentially — than liberals do.
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Brownian
July 11, 2012 at 1:34 pm (UTC -4) Link to this comment
Ideological purity? Can “Oppose everything the left does, no matter what” be called an ideology?
They demand purity, but it’s a purity of authoritarian conformity, not ideology.
Azkyroth, Former Growing Toaster Oven
July 11, 2012 at 1:34 pm (UTC -4) Link to this comment
And/or liberals understand that their concerns won’t always be the only ones on the table.
jamessweet
July 11, 2012 at 1:36 pm (UTC -4) Link to this comment
This article is stupid and ignorant. The reason us liberals aren’t pissed off at Kagan is because we already know she was drugged!
Chiroptera
July 11, 2012 at 1:39 pm (UTC -4) Link to this comment
I think it’s because conservatives have a far more detailed and specific conception of what they expect from their judges — total ideological purity, essentially — than liberals do.
And conservatives tend to have no respect for the notions of “rule of law” or of fundamental principles of constitutional democracy, like an independent judiciary.
Contemporary US conservatives are the wost kind of idealogues: their very notion of “fairness” and “justice” is anything that allows them to enact their policies into law. Anything that proves to be an obstacle to their agenda, whether it is a reasonable court interpretation, a President exercising his perogatives as President, or even a decision made by a majority of the voters, is “injustice” and “authoritarian.”
Stevarious
July 11, 2012 at 1:46 pm (UTC -4) Link to this comment
@Brownian
Ah, but authoritarian authority IS their ideology.
Stevarious
July 11, 2012 at 1:47 pm (UTC -4) Link to this comment
*conformity
Mr Ed
July 11, 2012 at 1:54 pm (UTC -4) Link to this comment
I think that a good justice is one that will disappoint you from time to time. When you don’t get everything you want from a justice it at least lend some credence to the idea that they are ruling based on law and not ideology.
/Scalia, I’m looking at you
d cwilson
July 11, 2012 at 2:00 pm (UTC -4) Link to this comment
And conservatives tend to have no respect for the notions
of “rule of law” or of fundamental principles of constitutional democracy, like an independent judiciaryCommon human decency.FIFY
Dr X
July 11, 2012 at 2:23 pm (UTC -4) Link to this comment
There might be a positive side to the viciousness of the conservative attacks on Roberts. These attacks might cause Roberts feel that the conservative tribe is becoming deeply alien, and that may begin to affect how he thinks. Who knows? Maybe that had begun to happen even before the right came down on him.
I’m thinking about Judge Posner, who recently said that the goofiness of conservatives has made him less conservative. If I understand him correctly, Posner was suggesting that conservatives hadn’t just parted philosophical company with him, but that his own thinking has also changed as he felt less a part of the conservative tribe.
Wishful thinking on my part, perhaps, but I have a bit of hope that conservative loons are shooting themselves in the collective foot with these insane attacks on Roberts.
Improbable Joe
July 11, 2012 at 2:30 pm (UTC -4) Link to this comment
Plus, I think sort of plugged-in progressives know that none of the SC justices are “liberal” in any real sense, so we really don’t expect much out of them.
Reginald Selkirk
July 11, 2012 at 2:59 pm (UTC -4) Link to this comment
@ Brownian #1: That’s Purity Of Essence.
Area Man
July 11, 2012 at 3:49 pm (UTC -4) Link to this comment
I was going to say what Chiroptera @#4 said. Liberals may not be happy when a “liberal” justice votes the other way, but respect for the rule of law and for the institutions of democracy requires that you accept the ruling and move on. You can try to change things by writing new legislation or trying to get justices appointed who are more to your liking, but at a minimum you have to understand that once SCOTUS rules, that is what the law is. But not conservatives! They get a ruling they don’t like and their first inclination is to change the rules of the game so that they win, by impeaching justices they don’t like, threatening to “nullify” the ruling, or best of all, insinuating armed rebellion.
They also do the same shit when they lose an election.
tfkreference
July 11, 2012 at 3:55 pm (UTC -4) Link to this comment
Perhaps it’s because of reality’s liberal bias (i.e., that liberals respect positions taken based on reason, moreso than the right, anyway).
And:
I bet Romney will date all of them at the same time.
Is that a Mormon or a pandering joke?
Michael Heath
July 11, 2012 at 4:03 pm (UTC -4) Link to this comment
Dr. X writes:
I have a hunch the strident emotionalism, overt contempt for the president, overt support of partisan political objectives, and most of all – the extreme position the other four conservatives justices took on their opinion is what caused J. Roberts to bolt. This reaction is also amplified by the fact the justice championed with keeping him on the reservation was J. Kennedy, providing no opportunity to split the others to a saner less extreme position not premised on obvious hatred of the black president. My explanation also explains J. Roberts’ thoroughly horrid defense of Obamacare on the tax issue; due to what I perceive is a job done in evident haste given its lack of supporting premises besides one weak one and the lack of counter-arguments to compelling rebuttals for his position.
So my notion regarding his motivation both explains his disloyalty to his fellow ideologues and why his opinion is so poorly argued. And let’s be clear here, Justice Roberts usually writes well-crafted deliberately laid-out arguments; so why is the most watched ruling he’s ever participated in the one where he performs so poorly? It’s like Tiger Woods missing four straight gimme-length putts to lose after gaining the lead late in the final round.
jnorris
July 11, 2012 at 4:07 pm (UTC -4) Link to this comment
You must remember that there are a lot of conservative shrunken heads out there clamoring for a headline or a guest shot on Faux News. This killer competition drives their punditry to More Crazy and Outlandish. They make Stupid to be noticed in the stagnate (non)intellectual swamp that is Right Wingnutery. Liberal pundits do not have that kind of competition and so they can remain the more rational voice in the media. (Or so I hope)
D. C. Sessions
July 11, 2012 at 4:48 pm (UTC -4) Link to this comment
Impeach Earl Warren
At the time that Roberts was appointed, part of the Republican litmus test would have been support for the individual mandate, given that it was a long-standing Republican idea. Had it come before the Roberts Court four years ago, it would very likely have passed by 7-2 or more; had Roberts voted against it the spleen vented from the Right would be just as great as we’re seeing now.
What that shows is that the test isn’t ideological but partisan:
what they expect from their judges — total
ideological puritypartisan loyalty, essentiallyCorrection emphasized.
fifthdentist
July 11, 2012 at 4:50 pm (UTC -4) Link to this comment
One of the only things that give solace — knowing that in America these bozos likely will get their wish and turn the country into the Fourth Reich, perhaps as early as next summer — is the humor I find in the gnashing of teeth and wailing that ensues when every little thing doesn’t go their way.
An argument can be made that health care is a “big thing,” but if Obama had never even mentioned the word, the crazies would be just as ginned up on something else as they are about that law. Maybe the Mexican gun thing, or maybe something else, but there would be SOMETHING that would have them frothing at the mouth like rabid rottweilers on meth.
cry4turtles
July 11, 2012 at 4:55 pm (UTC -4) Link to this comment
I think Justice Roberts voted the way he did because he was forced to view his service through history. He didn’t want to make his mark as the man who single handedly destroyed the American experiment. After the blatant faux pas of Citizens United, to strike down a president’s attempt to bring the USA into the now in healthcare would have stained his already questionable legacy.
slc1
July 11, 2012 at 5:01 pm (UTC -4) Link to this comment
I think that Judge Jones put it best after the Dover trial when he came under the same type of vitriol as Roberts is not undergoing. His response to the criticism of Ann Coulter is that, “I guess I was supposed to take one for the team.”
Michael Heath
July 11, 2012 at 6:24 pm (UTC -4) Link to this comment
I want to retract my Tiger Woods analogy. I don’t think CJ. Roberts purposefully threw the game in a way that has him purposefully acting well below his capabilities like he did. I think he justifiably reacted at the horror of the monstrosity his fellow conservative justices were concocting with their opinion coupled to their also acting as monsters – with visceral hatred of the president. Roberts then reacted with little time and sufficient forethought; that provides circumstantial evidence his reaction was tardy relative to the time needed to develop and publish a well-reasoned sufficiently framed opinion where perhaps his mind was more on the monster his movement had become rather than focused on writing a great opinion with little time available.
Ysanne
July 11, 2012 at 10:40 pm (UTC -4) Link to this comment
Two things really stood out for a cluelessly naive European like me:
and its specific manifestation
WTF? So they really expect a judge to be the puppet of their respective administration/political party?
Isn’t the job of SC judges to check the constitutionality of laws and their application in an independent manner? Obviously a person’s worldview and resulting political stance informs their evaluation of laws and the constitution to a certain extent, but I always thought that a basic requirement of a judge is that they try to keep their personal preferences out of decisions as much as possible, and argue on the basis of actual laws/rights/whatever.
The second quote above sounds like a soundbite from some failed state with flourishing corruption and cronyism.
David C Brayton
July 11, 2012 at 11:39 pm (UTC -4) Link to this comment
I think this explains a lot of the differences between liberals and conservatives. Conservatives value authority, order and submission to a higher authority. Whereas, liberals appreciate free thought, ideas and a tolerance for those that are not of the same mold.
It explains why liberals are so terrible at politics. Conservatives value unanimity on issues and they punish those that are not willing to tow (toe?) the party line. Liberals on the other hand, tend to be much more scattered and respectful of dissent. Unfortunately, that makes it difficult for them to attain and retain political power.
And having the dullard Harry Reid as a leader doesn’t help at all.
dingojack
July 12, 2012 at 12:02 am (UTC -4) Link to this comment
David – ‘toe the line’.
To place one’s toes on one of the two parallel lines in the sand/ pieces of rope etc. drawn/placed just short of arm’s length from each other in preparation of beginning a bout. (A boxing term).
Dingo
dogmeat
July 12, 2012 at 1:59 am (UTC -4) Link to this comment
Ysanne@21,
The reason it makes no sense is because the American political system is ver badly broken. The Republicans, with few exceptions, have gone stark raving mad. They oppose the current administration, not because of its policies, many of which are truly worthy of opposition, but because of its existence. Obama would have made a rather good Republican thirty to forty years ago, but now, rather than support policies tha they not only would have agreed with not five years ago, and might even have proposed themselves, they likely would oppose the very core principles of their party(if they truly have any) if Obama said he favored them. We’ve seen this on a number of compromises where they have literally done a 180 once Obama agreed with their argument. That isn’t the way our system is supposed to work. I think they would come out against puppies and grandma if Obama proposed a national puppy/grandma day.
David@22:
Personally I would argue that Reid was an extremely effective minority leader when the Democrats needed the freedom and flexibility to voice the various arguments against some terrible Bush policies. It wasn’t until the Democrats had a “majority” that he began to struggle. To be fair he had to deal with a party that represented something like 2/3 of the historical ideological spectrum as the Democrats came to represent everything in the US political culture that wasn’t batshit insane (which the Republicans appear to be seeking a monopoly).
valhar2000
July 12, 2012 at 4:22 am (UTC -4) Link to this comment
While I never really was part of the conservative tribe, I used to be of the “gays are icky” persuasion, and it was watching american conservatives in action that set me on the way to recovery.
gshelley
July 12, 2012 at 9:31 am (UTC -4) Link to this comment
There has been quite a bit of research recently on this kind of thing, and I think Chris Mooney covers it in his recent book, but it is a matter of perspective. Liberals tend to view nuance and subtlety as important, and so can see that people will sometimes come to different conclusions. Conservatives are often more interested in seeing things in absolute terms and they often seem to value being consistent as more valuable than being right (hence “flip flopper” is a much more frequent conservative attack than liberal), so deviation from the party line is more of a betryal