Depending on whether you generally prefer your vitriolic abuse from the left or the right, it’s been a tough week for Chief Justice John Roberts. Having given conservatives the sun, the moon, and the stars for seven years, Roberts suddenly finds himself on the wrong side of everyone from the Washington Post’s Marc Thiessen, to the Wall Street Journal’s John Yoo, to presidential hopeful Mitt Romney, who not only returned the chief justice’s class ring and football jacket yesterday, but also vowed to only date future justices who are, well, a carbon copy of Mitt Romney.
In contrast to all the weeping and wailing that has accompanied what appears to be John Roberts’ single significant defection since joining the court, liberals have been strangely silent—as they are always strangely silent—about the myriad ways in which the liberal justices have disappointed them this term. Oh sure, we get a little eye-roll from Elizabeth Warren over Justice Elena Kagan’s vote in the Medicaid expansion part of the Affordable Care Act cases. But looked at in its entirety, the 2011 term was yet another festival of defections by assorted members of the so-called liberal wing.
Think about it: The court’s liberals voted to find a ministerial exception to employment discrimination laws for religious schools and churches; ruled against the EPA in a wetlands case; and, as Adam Liptak points out, the court’s liberals pretty much crushed the Obama administration again this term. Yet you don’t find liberals burning their Stephen Breyer Pokémon cards, in part because liberals don’t have Stephen Breyer Pokémon cards in the first place. We can’t really be bothered.
Yesterday at Politico, Josh Gerstein wondered why the left had ignored Kagan, the liberal “turncoat,” and her massive defection on the Medicaid expansion. He singles out Kagan—as opposed to Justice Breyer, who also voted with the conservatives on the Medicaid issue—because everyone always assumed Kagan was in the tank for the Obama administration. Or as Gerstein put it, “The absence of public outrage toward Kagan is particularly notable since she wasn't parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.” Gerstein proposes several explanations for the left’s silence on Kagan, including the fact that her Medicaid vote may ultimately have limited practical impact and that liberals are giving her a pass for a possibly strategic decision to trade her Medicaid vote for Roberts’ vote on the individual mandate. I don’t think any of his conclusions are wrong, but I do think they paint only part of the picture.
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.
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.