The big non-weather news over the weekend was a thinly sourced article by CBS’ Jan Crawford seeking to confirm the theory that Chief Justice Roberts switched sides in the ACA case after initially supporting its invalidation on Commerce Clause grounds. Crawford’s account, which would appear to have come from a couple of law clerks working for the dissenters—or more interestingly, from an actual Justice—tells a tale of a fearful CJ bending to media and political pressure, and infuriating his conservative Court allies to the point they refused to even talk to him about the case, and acted as though the main opinion did not exist.
Now anyone who ever read Woodward’s and Armstrong’s The Brethren back in the day, or Jeffrey Toobin’s more recent The Nine, is not going to be that shocked by the suggestion that politics, personal rivalries, and ideological ax-grinding occur within the Court. More to the point, Roberts’ ulterior motives, if any, will never become clear until much later in his career. I think it’s just as plausible that he “switched sides,” if indeed he did, because he’s playing a longer Federalist Society game than his conservative friends, and may soon provide some nasty shocks to liberals who are now hailing him for his long-sighted sagacity.
But in the short term, reports like Crawford’s are bound to reinforce an already powerful elite conservative frustration with their “betrayal” by Republican-appointed Supreme Court justices that goes all the way back to Earl Warren, and includes Harry Blackmun, the author of Roe v. Wade (appointed by Nixon); Sandra Day O’Conner (appointed by Reagan); and David Souter (appointed by Bush 41), among others. Indeed, until last week the Justice most often compared to Judas Iscariot in recent years was the Reagan-appointed Anthony Kennedy, who joined with O’Conner to uphold abortion rights in a crucial 1992 case (before undoing some of his own handiwork in the “partial-birth abortion” case of 2007).
So you can expect Robert’s position on ACA, whether or not it represented a “flip-flop,” to become a powerful talking point among conservative activists in the case for kicking out the jams for Mitt Romney between now and November—and then, if he is elected, for demanding ideologically rigid Supreme Court appointments as they arise, much as Bush 41 was forced to give the Right Clarence Thomas in atonement for the Souter “mistake.”
It would be helpful if progressives focused on the judicial stakes of the November election as well, despite the tendency of some to view that perspective as representing a rationalization aimed at forgiving Obama his various heresies. Whatever else last week’s decision ultimately meant, there is little question now that the Court has at least four votes for a profound constitutional counter-revolution.
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