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.