One of the curious things about presidential appointments to the Supreme Court is that conservative appointees frequently lose the faith, producing opinions that are wildly at variance with the philosophy of the appointing president, while those justices appointed as liberals never waver.
For example, I bet it never crossed your mind that, upon sober reflection, Justice Sotomayor would come out and say, “You know, I just don’t think that individual mandate thingy is constitutional.” Chief Justice John Roberts, however, came out with an opinion that shocked conservatives, not to mention saddling us with a monstrous health care system, if it is not repealed and replaced. More puzzling, Roberts seems to have voted "no" before he voted "yes."
There is nothing improper in a justice’s changing his mind during court deliberations. Still, Chief Justice Roberts' contorted opinion suggests that something more than his interpretation of the Constitution was at work. Why is it that supposedly conservative justices are more likely to be persuaded to vote with the liberal justices than vice versa?
In a column headlined “Why Are Republicans So Awful at Picking Supreme Court Justices?,” Marc Thiessen addresses this phenomenon. Thiessen sees several reasons, including the culture of Washington:
For one thing, the whole legal and political culture pushes the court to the left. Conservatives are pariahs if they vote against the left on certain issues. But if they cross over vote with the left, they are hailed as statesmen. Just look the pre-emptive attacks on the Roberts Court when everyone thought it was about to strike down Obamacare — and contrast that with all the accolades Roberts is now receiving from his erstwhile critics. Before the decision he was threatening to plunge the nation into a political crisis. Today he is praised for his “humility,” “restraint,” being “brave” and “judicial modesty.”
This culture contributes, writes Thiessen, to the Senate’s being less able to probe the views of conservative nominees to the high court:
Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy. And as we saw last week, those philosophical statements do not necessarily indicate how they will vote on the bench. During his confirmation hearings, Roberts famously compared the role of a judge to that of a baseball umpire whose job “is to call balls and strikes.” This was taken as a promise that, as President Bush put it, “he’s not going to legislate from the bench.”
But, of course, Roberts virtually rewrote the Obamacare law last week in order to find it constitutional. If rewriting a law isn’t legislating from the bench, what is?
The only positive argument by a conservative in support of Roberts is that the Chief Justice did the wrong thing for the right reason. Charles Krauthammer was first out of the box with this one, arguing that the Chief Justice upheld the law because he feared for the court if it reversed Obamacare. Krauthammer gave Roberts credit for limiting future federal encroachments into our lives based on the Commerce Clause. But this raises a big question: what is the point of having a Supreme Court if it can’t rule based on the Constitution?
Krauthammer suggests that, had Roberts been a mere associate justice, who did not feel the court’s reputation was his to protect, he might have voted otherwise. Bill McGurn addresses this very disturbing notion in today’s Wall Street Journal:
If Mr. Krauthammer is correct, it raises a disquieting question. During Justice Roberts's confirmation hearings back in 2005, he described judges as umpires whose job it is to call balls and strikes as he sees them. The idea that he might have voted otherwise if he were not chief justice suggests that a "strike" was changed to a "ball" because of concerns for how the straight call would be perceived.
Let us stipulate that there's nothing wrong with a justice who starts out with one opinion but changes his mind as he reviews the facts and arguments. Let us agree too that the reputation of the court is a legitimate concern of any justice. The fundamental difficulty remains: a labored lead opinion that looks like a conclusion struggling for a rationale.
Unless Justice Roberts tells us, we will never know for sure. Still, the circumstantial evidence is persuasive. For one thing, against the contrivance of the lead opinion there is the clarity of a united dissent that we now understand started out as a majority view with Justice Roberts's support. That clarity likewise characterizes two separate decisions by conservative federal appellate judges—Laurence Silberman and Jeffrey Sutton—who upheld the individual mandate as a penalty under the Commerce Clause.
As for saving the court’s reputation, McGurn notes:
It's also hard not to notice that people now extolling Justice Roberts for rescuing the court's integrity are largely the same ones who have been impugning it.
The apparent Roberts switch reminds me of a comparable act by another good man, George H. W. Bush. Former President Bush reneged on his pledge never to raise taxes. The liberal media convinced Bush that he could be a “statesman” (yes, that was the word they actually used) if only he would break his word. President Bush fell for it and raised taxes, arguably losing a second term with this single act.
Chief Justice Roberts won’t face reelection—he was appointed for life, life terms having been designed precisely to shield the court from the outside pressure to which Roberts may have succumbed. But this ruling saddles the nation with a monstrous health system, unless it is repealed, and it will change history’s verdict on Roberts.
Victor Davis Hanson writes that this ruling makes Roberts “a tragic figure:”
Chief Justice John Roberts, a good man who apparently thought he was doing the right thing, is increasingly taking on the character of a lone figure from classical Greek tragedy. If one collates all the news reports, rumors, and scuttlebutt, and if they are mostly credible, one learns of his tortured switch. It was perhaps prompted by a genuine desire to mitigate the Court’s “partisan” reputation, or to establish Roberts in the long tradition of a Warren or Souter, as a jurist who “evolved” on the Court in a fashion that pleases the influential in Washington and New York—or both. (And indeed, those who were vilifying him before the verdict were the first to heap praise on his judicial statesmanship—at least for now.) The tragedy is that, as the story comes out, the reputation of the Court will sink not rise, as—fairly or not—it appears overly sensitive to public opinion and liable to capitulate to such pressures in mediis rebus.