Why Don’t Liberals Get Angry When Their Justices Vote Conservative?

The law, lawyers, and the court.
July 6 2012 4:38 PM

Where Is the Liberal Outrage?

Conservatives are pillorying John Roberts for his health care decision. Why don’t liberals get angry when their justices fail to deliver?

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The truth is that liberals have been forgiving the liberal justices their defections for decades. The notion of liberal commentators rising up en masse with threats to impeach and impale a justice for a single decision, as conservatives have done with Justice Anthony Kennedy, Justice Sandra Day O’Connor, and now Chief Justice Roberts, is beyond imagining. When Justice John Paul Stevens voted with the court’s conservatives on upholding a voter ID requirement a few years back—indeed, Stevens went so far as to write the opinion—liberals just chalked it up to his jaunty bow tie.

Why is that? For one thing, the court’s left wing has always been more fractured than the right, and the sense that the four liberals should be acting in perfect lockstep has never really gained any force on the left. Again this term, the pairs that agreed most frequently were Alito and Roberts, and Thomas and Scalia. The court’s liberals tend to be more inclined to flop around, so much so that it no longer surprises anyone when it happens in a single case. For another thing, conservative commentators are quick to use even one-off defections by the conservative justices as ammunition for the next confirmation fight. See for instance Thiessen and Yoo arguing that the real lesson of the ACA challenges is that the next nominee will need to be both further to the right than John Roberts and also far more thoroughly vetted. This isn’t about the right’s anger at Roberts so much as a warning shot about the next justice to be named. Liberals don’t think that way about the court, much less talk that way out loud.

The relative silence from the left also betrays a longstanding confusion from the left about what precisely it expects from a liberal justice. The fact is that conservative constitutional thought is so much more crisply expressed, and so much more broadly accepted, than liberal thought—an argument expressed forcefully today in the New York Times by Professor William E. Forbath of the University of Texas. He explains that there is a long tradition of liberal counter-argument to the laissez-faire constitutional vision put forth by the court’s five conservatives. Sadly, he says, “liberals have largely forgotten how to think, talk and fight along these lines.” In other words, it’s much harder to break up with your justice for doing something you dislike if you have no idea what you wanted him to do in the first place.

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One wants to be careful what one wishes for here: The day candidate Obama tells the mainstream media that he would never confirm a justice to the Supreme Court that disagrees with him about anything, ever, I’d start to feel very, very nervous about the meaning of an independent judiciary. And certainly, the idea that liberals are a little bit more, well, liberal in the bandwidth they’ve created for acceptable judicial behavior cannot be called a bad thing. But instead of smugly chuckling at the ways conservatives have turned on their chief justice this week, liberals might also want to take a page from their playbook. The courts matter. How we talk about the courts matters. And who is on the courts matters as well. John Roberts’ critics may be unreasonably vengeful this week. But the alternative to their unbending vision of judicial good behavior is to have a compelling competing vision as opposed to the fuzzy conviction that being lucky will always be enough.

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