Betrayal and Propriety: Considering Thiessen on Roberts

Who: Marc A. Thiessen
What: "Why are Republicans so awful at picking Supreme Court justices?", The Washington Post
When: July 2, 2012

Washington Post columnist and American Enterprise Institute fellow Marc A. Thiessen reflects on Chief Justice John Roberts' alleged betrayal of his conservative fellows in last week's health care ruling:

Just compare the records over the last three decades. Democrats have appointed four justices — Ruth Bader Ginsberg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. All have been consistent liberals on the bench. Republicans, by contrast, have picked seven justices. Of Ronald Reagan's three appointees (Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy) only Scalia has been a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one disastrous liberal (David Souter). With George W. Bush's appointments of Samuel A. Alito Jr. and Roberts, conservatives thought finally they had broken the mold and put two rock-ribbed conservatives on the bench — until last week, that is, when Roberts broke with the conservatives and cast the deciding vote to uphold the largest expansion of federal power in decades.

So Democrats are four-for-four — a perfect record. Republicans are not even batting .500.

Why is the Democratic record so consistent while the Republican record is so mixed? 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." Meanwhile, many conservatives are twisting themselves in knots to defend or explain his vote. Not a chance the left would do the same if one of the court's liberals had voted to overturn Obamacare. There is no penalty for voting left, but there is for voting right.

One of the reasons legal and political cultures appear to push constitutional law leftward might well be the nature of left and right themselves. Too often in the twenty-first century, people treat the notions as if they have equal weight, as if having one or the other opinion is simply a matter of opinions, and the proposition of effects and implications—that is to say, results—are irrelevant to the question of equivalency.

Left and right, liberal and conservative; these terms transcend mere party labels such as Democrat and Republican. They have historical heritages all their own. Historically, liberalism has sought to extend the bounties of civilized society to as many people as possible; conservatism has sought to preserve higher concentrations of such benefits for fewer people.

And perhaps some on the right-hand side of the American political aisle resent such notions, but when Democrats were the conservatives, they were pro-slavery. Perhaps that seems an overly-dramatic, or even exploitative example in light of the right-wing's ongoing whining about white slavery, or racial and ethnic issues, such as Jenny Beth Martin, of Tea Party Patriots, who asserts that history will equate NFIB v. Sebelius "with Plessy vs. Ferguson and Dred Scott".

But for those less inclined than Thiessen to subscribe to the bland false equivalency of political left and right, a simpler answer emerges. "Why," Thiessen wonders, "are Republicans so awful at picking Supreme Court justices?"

Could it be that by the time a judge rises to the level of being a viable nominee to the nation's highest court, they are generally presumed to be pretty good at their job? You know, no half-witted decisions like letting a child rapist off with a slap on the wrist because Bill Clinton cheated on his wife? Or serving cake in a sentencing hearing in order to mock the convict? Or stalking estranged lovers?

Right. So if we start with a presumption that one can reasonably expect a Supreme Court nominee to be a reasonably good judge, what next?

Well, think of liberal and conservative in terms of the above suggestion, the extension of societal bounty versus the reservation of such benefits to a privileged few.

Could it be that Mr. Thiessen is overlooking the possibility that Justice Souter and Chief Justice Roberts, in not playing their apparently-expected roles of political poodles for the right wing, are simply doing their jobs?

A conservative associate of mine, a midwestern optometrist, nearly choked on the NFIB ruling: "If the decision was 6-3," he wrote, "I could understand Roberts flipping so that he could write the judgement and limit the damage. But 5-4? Unbelievable." But, you know, that's just one person, and not one of public prominence.

To the other, Ann Coulter denounced Roberts' nomination to the Court seven years ago, questioning his conservative credentials:

So all we know about him for sure is that he can't dance and he probably doesn't know who Jay-Z is. Other than that, he is a blank slate. Tabula rasa. Big zippo. Nada. Oh, yeah ... We also know he's argued cases before the Supreme Court. Big deal; so has Larry Flynt's attorney.

But unfortunately, other than that that, we don't know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever ....

.... And it makes no difference that conservatives in the White House are assuring us Roberts can be trusted. We got the exact same assurances from officials working for the last president Bush about David Hackett Souter.

I believe their exact words were, "Read our lips; Souter's a reliable conservative" ....

.... Maybe Roberts will contravene the sordid history of "stealth nominees" and be the Scalia or Thomas that Bush promised us when he was asking for our votes. Or maybe he won't. The Supreme Court shouldn't be a game of Russian roulette.

The underlying presumption shared by Coulter, my associate, and Thiessen, seems to be that a judge, once confirmed to a bench, should reflect in his or her rulings the political whim of the party identified with the nomination. That is, to reiterate Thiessen himself:

So Democrats are four-for-four — a perfect record. Republicans are not even batting .500.

It is easy enough to see, in landmark legislation over the years, clear splits between progressive and regressive outlooks; would Ms. Martin, for instance, care to assert that the "liberal" (as such) decision in Brown v. Board of Education, which overturned the notorious "separate but equal" standard of Plessy v. Ferguson was somehow a betrayal of conservatism?

Or was it, perhaps, that the progressive outcome of the unanimous Court decision in 1954 was the right thing to do, and Governor Wallace's decision to stand in the schoolhouse door as such was the wrong thing to do?

Moral propriety and justice are not exclusive provenance of liberalism; indeed, the liberal pursuit of progress is and always has been fraught with peril.

But in many of our landmark decisions, the liberal consideration simply coincided with what is right. Coulter's scorn toward Souter is instructive: Did Justice Souter betray conservatives, or simply do the right thing?

In what way are those two outcomes not mutually exclusive? The most obvious answer there is that one betrays their political fellows by doing the right thing when that right thing is in conflict with the party's desires.

Chief Justice Roberts' majority opinion in NFIB v. Sebelius may, perhaps, appear more complex and subtle than the quite literal questions of black and white that dominate the judicial transition from Plessy to Brown, but this results from diverse causes, not the least of which is the proverbial fog of war. In the thick of battle, as politicians charge toward November, and with frustrated rhetoric slung this way and that by those disappointed or offended by Roberts' decision, our perspectives are almost necessarily more limited than the hindsight of a half-century. Today, Brown seems so obvious an outcome that one wonders whence came the legitimacy of the counterargument; and Plessy seems so repugnant that it is nearly comically ironic that the dissenting vote against "separate but equal" came from Justice Harlan, a former slave-owner.

What will the future hold for analyses of NFIB v. Sebelius? Will considerations of eighteenth-century mandates to buy health and hospital insurance be more or less relevant to the issue? How will the NFIB context affect future readings of how our regard for the Commerce Clause functions?

Such questions only time can answer, but in the consequent considerations we might find certain answers relevant to Thiessen's exploration. Did Chief Justice Roberts betray conservatives, or, simply, do the right thing? And are those two conditions exclusive of one another? Indeed, if these are mutually exclusive outcomes, what does that say of conservatism in general?