Supreme Court

Conservatives vs. John Roberts

The chief justice draws fire from the legal right.

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Credit: WhiteHouse.gov

In August 2011 I wrote a column for Reason.com arguing that when the Patient Protection and Affordable Care Act finally landed before the U.S. Supreme Court, Chief Justice John Roberts would be the vote to watch. Roberts was an old-school legal conservative, I argued, which meant that he was a true believer in the doctrine of judicial restraint, which is the idea that the courts should defer to the wishes of the democratically accountable branches of government whenever possible. That philosophy once occupied the commanding heights of the conservative legal movement, I noted, though in recent years the shine was fading and conservatives were becoming increasingly interested in seeing the courts act in a more aggressive manner. What that meant for Obamacare, I predicted, was that "Roberts may very well uphold the health care law as an act of judicial restraint. Just don't expect the conservative rank and file to thank him for it."

Ten months later, the chief justice did precisely that. "It is not our job," Roberts wrote in National Federation of Independent Business v. Sebelius, "to protect the people from the consequences of their political choices." Roberts upheld Obamacare, and he did so using the explicit language of conservative judicial deference. Few conservatives thanked him for it.

That drama largely repeated itself this past June when Roberts once again saved Obamacare from legal destruction. "In every case," Roberts wrote for the majority in King v. Burwell, "we must respect the role of the legislature, and take care not to undo what it has done."

It now appears that some conservatives have finally had enough. Writing today at the Los Angeles Times, reporter David Savage notes:

[A]s Roberts this week marks the 10th anniversary of becoming chief justice, he finds himself in the crosshairs of right-leaning pundits and GOP presidential hopefuls who brand him a disappointment and openly question his conservative credentials…

the Judicial Crisis Network, a small conservative group, began an ad campaign this month saying, "We can't afford more surprises," and featuring photos of Roberts along with Justice Anthony M. Kennedy and retired Justice David H. Souter, two Republican appointees whose decisions deeply disappointed and angered conservatives.

So what should these angry and disappointed conservatives do? Actually, here's a better question: Let's say a Republican is elected president in 2016 and has the opportunity to fill one or more Supreme Court vacancies in the coming years. How should that president avoid placing another Roberts on the bench? I'm not sure what the Judicial Crisis Network think about that, but in a recent Weekly Standard piece, libertarian law professors Randy Barnett and Josh Blackman offered some excellent advice:

Reject clichéd calls for 'judicial restraint'

"Judicial restraint" and "deference to the legislature" are easily manipulable concepts that distract attention from what really should matter to any constitutionally conservative voter or president: Who has the fortitude to follow the Constitution wherever it may lead and let the chips fall where they may? Any judicial nominee can claim he or she will be "restrained" or "deferential" but what exactly do they think "restrains" them? The popularly elected Congress, or the popularly enacted Constitution? Invocations of "restraint" and "deference" are designed to avoid this crucial issue. The same goes for deference to the executive and its administrative agencies.

Presidential candidates should reject the vapid labels of "restraint" and "legislating from the bench" and focus instead on what a prospective nominee's proven track record and paper trail (see above) say about his or her constitutional philosophy. The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about "strict constructionism" or "calling balls and strikes" during a confirmation hearing.

Related: John Roberts' Judicial Abdication

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  1. I look at his wife and kids and think “beard.”

    The next thought I have is “leverage.”

    1. I thought the going conspiracy theory was that the adoption of his kids was flawed, and he was threatened with losing them.

  2. Applying the Constitution even when Congress doesn’t want to *is* judicial restraint.

    1. Hence your strong support of the Obergefell decision.

      1. Yes, conservatives should always support judges for applying the Constitution faithfully, both the parts they like (e.g. the parts that talk about religion and guns), and the parts they like less (e.g. the parts that talk about abortion and gay rights).

        1. that Roberts quote never fails to blow me away. If protecting the republic from the perils of democracy is not the role of the supreme court, there is no point to a supreme court.

  3. How should that president avoid placing another Roberts on the bench?

    Ted Cruz campaigns on specifically how to do this. Only nominate justices with a clear record of upholding the constitution.

    1. Here’s some hints:

      (a) Don’t nominate your White House counsel because she’s such a nice lady and wouldn’t it be a good capstone to her career?

      (b) Don’t nominate someone whose conservative bona fides you have to “prove” to activists in off-the-record “we can’t say this in public but…” meetings.

      (c) Don’t nominate someone who disavows the sound doctrines he used to expound by saying “gosh, I was just being a zealous advocate, you don’t think I *believe* that stuff?”

      (c) Don’t nominate someone who gets praise from the Democrats as someone who “avoids extremes” and “builds consensus.”

      in short,

      (d) Stop being a [bleep]ing moron.

      1. Democratic Presidents never seem to nominate someone who later “grows in office” and realizes that Roe v. Wade was wrong, that there’s a personal right to own guns, that the federal government is usurping lots of powers, etc.

        So just look at the vetting process Dems use and do it in reverse.

      2. Don’t nominate your White House counsel because she’s such a nice lady and wouldn’t it be a good capstone to her career?

        Obama did the same thing, and I seriously doubt it was because she was a nice lady. Nominating one of your hard-core apparatchiks to the SCOTUS essentially gives you a 20 year term.

        1. I was thinking of Harriet whats-her-name under W.

          I think she gave some kind of speech indicating she was wobbly on key issues, and besides that she had no particular record. Conservatives forced W to back off.

    2. If the scum if the JournoList thinks someone is acceptable, that person probably shouldn’t be nominated. If the scum in the JournoList think someone is unacceptable, that would probably make a great nominee.

      1. I thought it was anyone the ABA rated as “unqualified/unqualified”.

      2. didnt JournoList, um, stop existing several years ago?

  4. So its Judicial Restraint when the Supreme Court rewrites laws or comes up with all new use of the law even though nobody who originally wrote or voted for the law would have used it for that purpose?

    1. +1 Judicial Retaint

    2. Judicial restraint = decision reaching a result I like
      Judicial activism = decision reaching a result I don’t like

      1. I dunno, in all seriousness, I think progressives have counted a lot of decisions they liked as “judicial activism”. The go-to judges for progressives were, in the balance, the most activist judges on the bench, “discovering” all manner of new rights that were previously unknown or unacknowledged.

        1. New rights are fine.

          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          The issue is new obligations.

  5. Thank Crom he didn’t feel that way on Citizens United

  6. OT: Politics seriously makes people incredibly stupid. A couple of weeks ago Progressives were making Boehner out to be this monster extremist but now that he’s stepping down, they are shitting their pants and worrying that someone worst then him will come in deny them of their free birth control.

  7. I like the photo of Barry and Roberts high-fiving

  8. Roberts is a big believer in the ‘two wolves and a sheep’ form of governing it seems.

  9. The popularly elected Congress, or the popularly enacted Constitution?

    This is all great for Navel Gazing and all, but history informs us that it can be neither, one, the other, or both all at the same time, and none of it matters.

    If the SCOTUS claims to be sticking to the Constitution, they can claim they ‘discovered’ a new meaning to the original text or intent.

    In about a couple-dozen years we went from a place where it was generally understood that if the Federal Government were going to ‘ban’ something, it required a whole constitutional amendment. But John Kerry-like, “no one passes amendments anymore” so we just sort of do whatever we want. We are a pure democracy, for better or worse– the Democracy Now! crowd have actually attained what they always wanted, even if a good chunk of it wasn’t what they intended.

    1. commerse clause bitches!!

      1. Ash clause durbatul?k, ash clause gimbatul,
        Ash clause thrakatul?k agh burzum-ishi krimpatul.

    2. We are a pure democracy, for better or worse– the Democracy Now! crowd have actually attained what they always wanted,

      Except it’s not – a pure democracy (and I assume you don’t mean “every decision has to be voted on by the electorate” type) couldn’t use “love is love” to force states to recognize gay marriage in cases where their voters were quite clear on not wanting to recognize it.
      What you have is the worst of all systems – oligarchy in which whims of powerful individuals are supreme (pun intended).

      1. “Love is love” brought to us by force. Is there a name for forced love?

      2. I’ve never been clear on whether D Now! has wanted more direct democracy, or just less constitutional restraint. For instance, there’s always this talk on the left of economics needing to be “democratized”, but I’m not sure if they’d settle for a representative body making those decisions or not.

        What’s funny to me is that as a libertarian, I’ve always understood that pure democracy wouldn’t get me within 1000 miles of what I consider to be a better society.

        Progressives always seem to believe that pure democracy will get them closer to what they want. It’s like they sincerely believe that inside every voter is Che Guevara trying to get out.

        I mean, they’ve been burned by direct democracy many times… burned bad. But they seem to always rationalize it away as an anomaly of ‘outside, dark, monied, shadowy interests’ influencing the process.

        1. “democracy”, like “justice” or “equality”, is a meaningless word with them. It means what they want it to mean, no more, no less. It has as much to do with any meaning of ‘majority will’ or ‘rule by people’ as their version of ‘liberal’ has with ‘considers liberty the highest value.’ Whatever they say, they mean “do what we want!”, and means through which their will be enforced are irrelevant. So yes, they will always tell you true democracy means no referenda. Because they always lose those. True Democracy is when things they want happen, and things they don’t want don’t.

          1. Whereas libertarians cut out the middle man and support enlightened dictatorship?

        2. My favorite is still hearing them rant and wonder about why people don’t vote for their interests which are clearly represented by progressive policies. It’s a wonder to them that poor and middle class Republicans exist who don’t feel they have a right to ‘free shit.’

    3. If the SCOTUS claims to be sticking to the Constitution, they can claim they ‘discovered’ a new meaning to the original text or intent.

      You are correct that anybody can claim anything.

      I’m more interested in what they actually do, not what they want me to think they are doing. Looking at it that way, if you are actually sticking to the Constitution, you aren’t discovering new meanings, rights, etc.

  10. I’m both ACA cases Robets was not deferring to the legislature, he was deferring to the executive. In both cases he rewrote what the legislature clearly intended in order to rationalize the policy the executive wanted to implement. If this is “restraint”, it looks peculiarly activist.

    1. I agree with this.

      The ACA ruling by Roberts was probably his most activist ruling to date.

      It was basically a long ‘nudge-and-wink’ to the law’s creators helping them out with their intentions vs. the text of the law.

  11. In the Obamacare case, and other federalism cases, the choice isn’t between “the elected representatives of the people” on the one hand and unelected judges on the other – the choice is between the elected representatives of the people *in Congress* and the elected representatives of the people *in state legislatures* (subject to state constitutions, which are approved by the people directly).

    So Congress /= teh peeple’s elected representatives!!!!

  12. “It is not our job,” Roberts wrote in National Federation of Independent Business v. Sebelius, “to protect the people from the consequences of their political choices.” Roberts upheld Obamacare, and he did so using the explicit language of conservative judicial deference.

    His ruling is not supported by that statement. Obamacare is not merely a poor political choice (though it is that in spades), it is blatantly unconstitutional. “Conservative judicial deference” has never demanded that unconstitutional laws be upheld; it was a reaction to the leftist judiciary’s tactic of treating the 9th amendment as some kind of ATM for new rights whose recognition enables leftist policies to be written into precedent.

    1. The difference between a real ATM and the judicial one, is that my ATM stops putting out at some point.

      1. So the ATM is different from your mother, too.

        …is how one of the more retarded H&R commenters would have replied.

    2. It’s constitutional now.

      1. Nope. Only a constitutional amendment can change the constitutionality of a law.

        1. Well, you’d need an amendment to make it unconstitutional, that’s true.

          1. No, you wouldn’t, Tony.

            Even by your standards, you’d just need a SCOTUS decision that it was unconstitutional. SCOTUS can overturn its own decisions, you know.

            By my standards, whether something is actually Constitutional doesn’t turn on whether SCOTUS says it is. Just like whether somebody is actually guilty of a crime doesn’t turn on whether they are convicted by a court.

  13. The thing is the decision in the subsidy case goes AGAINST the intent of the legislature. The intent of the Congress was to force the states to set up exchanges. Now there’s not chance at all of that happening. In fact the states that have set up exchanges would be suckers if they kept them.

    1. Not suckers. Rightthinkers. The true believers. Our enlightened and benevolent rulers.

      1. No, true believers want federal exchanges and federal subsidies leading to single payer.

  14. I agree with former poster and Commenting Legend John when he would say that it is ridiculous that there is only one member of the court who has been in a courtroom. I would also find it refreshing if a candidate for the court was not someone who spent their entire adult life preparing for the moment. I hate the term “creepy,” but that is creepy.

    1. Former? Did I miss another H&R ‘in’ thing? Why is John ‘former’?

      1. He’s been absent for awhile. The informed speculation is that “John” is a nom du comment for Kim Davis.

        1. You see, this is why I’m never one of the cool kids… how’d I miss that?

          Wasn’t John a lawyer? (I know, what that spelling?) And John, for all his faults didn’t seem like Kim Davis.

        2. When did “informed” come to mean “hysterical groping”?

          1. When did “informed” come to mean “hysterical groping”?

            I’m not feeling the theory either.

          1. John.

  15. Wait a minute. The Roberts opinion that saved the mandate also killed Medicaid expansion. That is huge. The mandate isn’t going to save obamacare. The Medicaid restriction might kill it.

    The subsidy case was decided 6-3. His vote wasn’t deciding and if he hadn’t voted in favor, he couldn’t have written the opinion. Can you imagine that opinion being written by Ginsburg?

  16. Marbury. Which guardian guards which guardian.

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