In a more serious vein, I heard one pundit reel off a list of other justices previously nominated with the expectation they would be conservative who later moderated their judicial philosophy to become more liberal. Roberts was a Bush nominee, but his father Bush I, nominated Justice Souter who became persona non grata in the eyes of this Chief Justice. And now the NY Daily news wonders "Is Chief Justice John Roberts the new David Souter?"
Retired Justice John Paul Stevens, who was in the courtroom Thursday, was a Gerald Ford nominee whose philosophy underwent a change when he got to the Supreme Court.
On the Seventh Circuit Court of Appeals, John Paul Stevens had a moderately conservative record. Early in his tenure on the Supreme Court, Stevens had a relatively moderate voting record. He voted to reinstate capital punishment in the United States and opposed race-based admissions programs such as the program at issue in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). But on the more conservative Rehnquist Court, Stevens joined the more liberal Justices on issues such as abortion rights, gay rights and federalism. His Segal�Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely in the ideological center of the Court. However, a 2003 statistical analysis of Supreme Court voting patterns found Stevens the most liberal member of the Court.
Today's Tea Party extremists are not far removed from the McCarthy Era super-patriots. The civil rights struggle has changed form, with bigotry expressed more politely with separate but equal replaced by vouchers and school choice. Those of us who recall the "Impeach Earl Warren" billboards know how to interpret today's dog whistles.
And Borowitz' delightful recapitulation of Roberts as a proxy President Obama as the embodiment of all that is evil -- politically, philosophically, socially and any other way you want to see it -- could not have been more eloquent. Our politics has deteriorated to the point that it's up to comedians to explain it. In years to come the footnotes of history will include the names of late-night comics and TV pundits like Jon Stewart and Steven Colbert.
This turned up in a search...
That was posted two years ago by Cornell Professor Michael C. Dorf. Curious about any response he might have had to Thursday's decision I found his blog home. Sure enough, like most lawyers, he has plenty to say. So much, in fact, that I decided not to wade through it all. Readers are welcome to drill into the links for themselves. This bit jumped off the page at me.
I am sure that there will be much speculation about whether Roberts voted as he did to preserve his legacy or to prevent the Court from being perceived as a purely political institution, but I don't buy it. If the Chief had gone the other way, all of the attention/blame for the result would have focused on Justice Kennedy. Moreover, although the Chief cares about the legitimacy of the Court, it's easy for liberals like me and most of my readers to forget that, given the unpopularity of the mandate, a decision the other way would not have much damaged the Court's legitimacy. I think that CJ Roberts was simply led by the ineluctable logic of the anti-formalist argument that labels don't matter.
I have been saying some variation of the following since the oral argument: "When I started as a constitutional lawyer, I was about 70% legal realist. I thought that in the ideologically identifiable cases in the Supreme Court, law accounted for roughly 30% of the outcomes one saw. After Bush v. Gore, I was at 99-1. That last one percent is on the line in the ACA case." Now thanks to John Roberts, I'm back to 30%.
Though I am essentially Liberal, I approach legal commentary with the same conservatism that I do drinking. Too much will make you drunk. I'll take my wine slowly along with the meal, hard liquor in moderation one drink at a time, and beer by the glass. Pitchers of beer, like spiked punch, make me hesitant to join the crowd. Like lawyers in an argument, they often get more involved with drinking than clear thinking.
(It's also one of the pitfalls of broadcast journalism, incidentally, which conflates rhetoric and performance with sensible arguments and art.)