Political Animal


July 02, 2012 10:34 AM A New Grievance For the Right

By Ed Kilgore

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.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • T2 on July 02, 2012 10:42 AM:

    if we didn't know it after Bush-Gore and Citizens United, we know it now.....the single most important reason to elect a Democrat president is the future of the Supreme Court and through it our nation's progress and just laws.

  • SYSPROG on July 02, 2012 10:48 AM:

    YES YES YES! And maybe, Roberts 'changed his mind' because of Scalia' vitriol. Nobody wants to talk about how Scalia thought he was a congresscritter and a partisan hack who could vote AGAINST Obama and not for any 'constitutional decree'...

  • Gene O'Grady on July 02, 2012 10:56 AM:

    I think that's "jambs," not "jams."

    My father was a middle of the road democrat appointed a judge in California by Reagan in 1971. The vitriol from some of the conservatives that came Ronnie's way was a sight to behold; I don't think he appointed many democrats after that.

  • Walker on July 02, 2012 11:01 AM:

    This article reads like Kennedy's fee fees were Hirt because he did not get to be the swing vote.

  • Robert on July 02, 2012 11:06 AM:

    If we assume Crawford is accurately reporting what happened (that's not yet certain but she was the reporter to whom CJ Roberts gave his first interview after he was on the Court), there is one hopeful lesson for liberals: once individuals are on the Court for life there appear to be many moderating influences that beneficially affect most, if unfortunately not all, right wing appointees (your list of "Judases" being exhibit A) reducing their radical tendencies and insulating constitutional law from more sever damage. More evidence that "the arc of the moral universe is long but it bends towards justice." This of course does not mean the next election is any less important than you say it is.

  • c u n d gulag on July 02, 2012 11:08 AM:

    If thinking of an every shrinking liberal minority on the SC, from 5-4, to 6-3, to 7-2, to 8-1, down to 9 foaming-at-the-mouth Bork and Scalia clown-cloness, doesn't motivate people to vote for Obama, I don't know what will.

    Roberts decision on ACA may very well be a "one-off."

    He's just as steadfast a Conservative and corporatist today, as he was the day before this decision came his way.

    What, CRAPTCHA?
    Is that your favorite porn video?
    asshon xxv?

    And here I thought you were a breast ma... whatever it is you are.

  • berttheclock on July 02, 2012 11:09 AM:

    Ah, those 58 Senators who voted Nay for Bork, then, en masse voted Yea for Kennedy. Really did their homework, eh? I wonder what would have been the "What-ifs" had Ginsburg not been "doobied" out of contention?

  • DisgustedWithItAll on July 02, 2012 11:17 AM:

    With what is at stake, any leftie/liberal/progressive not voting for Obama out of irritation over impurity or pet issues is a small-minded, tedious, fucking idiot ever bit as bad, if not worse than the most brain-dead Useful Idiot.

  • jlt on July 02, 2012 11:29 AM:

    Simple legacy protection..The approvals were going down and were already at 44% !

    He cut the baby in half by salving his conscience with the tax clause but he was one of 5 the other 4 deemed it under the commerce clause..It was just his OPINION not that of the majority he joined! Read Parts I, II, III-C!

  • jim filyaw on July 02, 2012 12:30 PM:

    for starters, there's not a split on scotus between "conservatives" and "liberals". there is a split between conservatives and radical reactionaries. there hasn't been a true liberal on the court since william o. douglas had to hang it up. try to visualize him on today's court. imagine what thurgood marshall would think of the cipher who now holds his seat. try to imagine if you will, getting an appointment like sandra day o'conner, john paul stevens, or david souter from this republican party.

  • jjm on July 02, 2012 12:44 PM:

    The more the right rants, the fewer people will listen to it. The law is the law, in most people's eyes, and the Court's declaring it all Constitutional rated it a 5% jump in approval.

    And speaking of its 'approval' polling, the law would only be strengthened by making it more 'liberal' since a fair amount of the disapproval comes from those who wanted it to do more.

    I think the right wing has jumped the shark. They LOST. They look like hysterical ninnies.

    When they lost the --gasp ! -- presidency they decided they would act if they were still in charge, and people kind of believed that because of the aggressive way the GOP acted to appear powerful.

    But with this one, the loss is so definitive in the eyes of the people, the right cannot really keep claiming that they are in charge, especially given that the SCOTUS had been touted as conservative.

    Now they look like a bunch of sour losers trying to explain their loss.

  • bleh on July 02, 2012 12:46 PM:

    Do let's also remember that, for the frothing Right, which includes much of the Base, it's not the facts that matter; it's the anger. As long as they have someone to hate on, they're good. That the facts don't support it is irrelevant. In fact, if you point that out to them, they get even angrier.

    It's not about facts or reasoning. It's about fear and resentment and anger directed at the Other, especially the Other designated by the paymaster puppeteers.

  • David in NY on July 02, 2012 12:49 PM:

    There is a perfectly reasonable justification for Roberts's changing his vote, by the way. He obviously always thought it was probably a tax, as evidenced by his statements in oral argument. He voted to overrule the mandate (but not the whole act), on the assumption that Kennedy or somebody could explain why it actually wasn't a tax. They couldn't do it, as evidenced by their opinion which doesn't even try to do it. Moreover, they insisted on invalidating the whole thing. So he changed his vote, but not his position.

  • MURPHRO2 on July 02, 2012 4:35 PM:

    I agree with Kilgore that one should not overplay the fact that while this opinion comes off as moderate, that Roberts has in fact moderated much his views. I am guessing not. But it needs to also be noted that even if Roberts was playing a double game with the ACA decision -thinking that he's painted the Obama Administration into a box over the ACA being a "tax"- it is not unlikely that he has painted himself into box instead. By siding with the liberals can he simply switch back to the radical wing without this opinion losing all is merits? In order to show his thinking is consistent he may end up looking more moderate than he actually is. He may search desperately for Obama initiatives to invalidate but find he can only really do so at the margins. Perhaps every attack on the government programs can now be defended simply as a "tax" and thus Constitutional?

  • jhm on July 03, 2012 8:04 AM:

    The wingers should have seen it coming; seeing as Mr. Roberts didn't ask for a birth certificate before flubbing his administering the oath of office.