"I could carve a judge with more backbone out of a banana"

What stuff are the Court's middle three Justices made of?

At a recent conference, I invoked Theodore Roosevelt's famous criticism of Justice Oliver Wendell Holmes, Jr. to describe Chief Justice Roberts and Justices Kavanaugh and Barrett: "I could carve a judge with more backbone out of a banana."

Of course, TR's criticism of Holmes was hyperbolic, and a bit unfair. Holmes had survived being shot twice during the Civil War, and developed a distinctive judicial philosophy of restraint. But this aphorism, a century later, still has some appeal.

Is it a fair descriptor of the Court's middle three Justices? Yes and no. (For a refresher, I wrote an essay on Judicial Courage.)

Let's start with Chief Justice Roberts. The defining moment of his tenure was NFIB v. Sebelius. Roberts decided to save the Affordable Care Act. By Roberts's own admission, the saving construction was not the best reading of the law. Still, the Chief Justice felt compelled to reach that conclusion based on his perception of the role of the courts. Was his vote influenced by external factors? No, I don't think he changed his mind based on what some liberal opinion writers would write. Rather, he was worried about how striking down Obamacare would affect the long-term perception of the Court.

Was that an act of spinelessness? Indeed, as I discuss in Unprecedented, conservatives called on the Chief Justice to grow a "backbone," and not change his vote. In my view, judges should go where the law leads, and leave the political stuff to the other branches. But, twelve years later, I have come to peace with Roberts's decision. (I'm still not over his analysis on the Direct Taxes Clause.)

Here comes the compliment. When Roberts made this decision, he engaged in an act of utter selflessness, and courage of the highest level. He knew that he would become ostracized from the right. As best as I can recall, Roberts has not stepped foot in a FedSoc meeting since 2012. And Roberts knew the left would never accept him for Shelby County and countless other decisions. Whatever grace liberals gave him for NFIB would last a few minutes. The great Chief Justice would be a jurisprudential orphan. But he knowingly exiled himself into the breach. This is not the stuff of a banana.

What about Justice Barrett? I've gone through her record many times. As a law professor, she did not take controversial positions on matters of public concern. At most, she had a few press interviews on Supreme Court decisions, like NFIB and King v. Burwell, and made some anodyne critical remarks. But Barrett did not write any op-eds, sign amicus briefs, or get into the mix.

A colleague suggested that Justice Barrett showed her fortitude during her Seventh Circuit confirmation hearing. Everyone remembers the line. Senator Diane Feinstein told Barrett that "The dogma lives loudly in you."

I went back and rewatched the whole clip on CSPAN. After Feinstein said it, Barrett sort of stared blankly in incredulity at Feinstein, and the colloquy ended. Barrett never actually said anything in response. Feinstein pivoted to ask some question of Judge Joan Larsen. I know this "dogma" line made Barrett something of a mini-celebrity, but I never quite understood why. This is not like Clarence Thomas and Joe Biden going toe-to-toe.  Moreover, Feinstein at the time was suffering from senility. (It is no coincidence that senile and Senate share the same root.) Feinstein made an utterly inappropriate statement that was universally panned. And Barrett was easily confirmed.

What are the courageous votes that Justice Barrett has cast since she was on the bench? Dobbs for sure–especially since she was the fifth vote. Had she blinked, Roberts could have controlled the majority. For the other cases, Barrett was the sixth vote: Loper Bright, Kennedy v. Bremerton, and SFFA.

By contrast, Justice Kavanaugh's performance during his second confirmation hearing demonstrated courage under fire. He expressed righteous indignation at how he was being treated, and defended himself vigorously. I sometimes wish that Kavanaugh could bring that fire to the bench in some cases. But there is still time.