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?

Justice Elena Kagan, who sided with conservatives on Medicaid expansion.
Justice Elena Kagan, who sided with conservatives on Medicaid expansion.

Wikimedia Commons.

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.

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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.

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