All Things in Moderation

Ever since last week I have been contemplating writing a post about the Supremes and judicial philosophy, but have not had the time to really put my thoughts in order, so I have put it off. Today, however, William McGurn, writing in the WSJ, noted in passing precisely the topic I wanted to write about, so I figured I would just highlight what he said. His article is primarily about Chief Justice Roberts’ decision to switch votes on the ACA case for what are seemingly political rather than constitutional reasons. But what caught my attention, and what I have been thinking about for a few days now, was the following aside:

This strikes me as a real handicap. This is not to say that conservatives on the Court everywhere and always apply that belief and those limits consistently. We need look no further than Roberts and the recent decision itself to know that. But it seems to me that conservatives are uniquely open to the charge of failing to uphold their self-proclaimed principles because they actually profess to have some.

Putting aside whether or not the charge of hypocrisy actually had merit, at the very least it is fair to question whether or not the conservative bloc ruling in Bush v Gore set aside ostensible principles (eg states rights) in order to reach a politically desireable result. But imagine a mirror situation in which the reverse had happened. Imagine that a liberal majority on the court had made precisely the same ruling resulting in a Gore victory. The liberals might be accused, as they often are, of simply ignoring the constitution out of convenience. But who could ever seriously charge them with judicial hypocrisy? If liberal constitutional philosophy is correct and it is true that the constitution is “living” and therefore its meaning perpetually in flux depending social norms, circumstances, or who knows what else, then at any given time their interpretation of it may well be the “correct” one, even if it stands in contrast with the plain words of the constitution itself.

Basically, it seems to me that conservatives advance a theory of constitutional interpretation that makes conservative opinions objectively critique-able on their own terms, while liberals do not. That is why hand-wringing over the legitimacy and politicization of the Court inevitably centers around conservative Court opinions, and never, ever around liberal Court opinions. Again, the recent ACA case is instructive. Conservatives are now attacking Roberts, not the liberal bloc that voted with him and made up 80% of the majority, for what seems to be a politically inspired opinion, not because they think liberals aren’t being political, but because Roberts seems to have gone against his principles, while the liberals were just doing what liberals do.

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The WSJ today notes something odd that I noticed and thought was peculiar yesterday in reading through the dissent:

Charles Krauthammer proposes a similarly political explanation for Roberts’ decision.

Whether or not this is true, Roberts’ decision will not, and should not, restore any lost legitimacy of the court. The legitimacy of the court (to the extent that it even matters) had not been brought into question because one or two contentious decisions have been perceived as politically motivated. The legitimacy of the court is in question because the court has become a political institution. In our post-Roosevelt and, in particular, post-Roe world, justices are appointed and confirmed to the court by politicians in a blatantly transparent effort to effect political ends via the judiciary. And once on the court, those justices do what they were nominated to do. From a layman’s perspective, it has become obvious that, on many politically contentious issues that make it to the court, justices have a preferred result in mind and use whatever lawyerly semantics, sophistry and tortured reasoning they can to justify reaching that preferred outcome.

Far from dispelling this impression of the court, Roberts’ opinion merely strengthens it. The fact that he is a conservative joining a bloc of liberals does nothing to blunt the undeniable conclusion that this decision was politically motivated. It doesn’t matter much whether it is because he likes the direction in which Obamacare is taking the nation, or because he is trying to – ironically – alter perceptions of the court. It is clear that he has engaged in the same semantics, sophistry and disingenuous parsing that has made so many of us non-lawyers so cynical about the court’s proceedings.

If Krauthammer is correct and Roberts’ decision was driven by a desire to burnish the courts flagging reputation as an impartial, non-political interpreter of the law, he could not possibly have taken a more counter intuitive approach, nor have failed more abysmally.

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