We Felt A Great Disturbance in the #SCOTUS Force

October 1st, 2015

In the New York Times, Linda Greenhouse reflects how conservative perspectives of the Supreme Court have shifted.

The Republican debate on Sept. 16 brought to the surface for a national audience the grumbling in conservative circles that began when Chief Justice Roberts cast the deciding vote three years ago to reject the first challenge to the Affordable Care Act. His authorship of majority opinion inKing v. Burwell in June, rejecting a second and even more contrived attack on the law rubbed salt in a still open wound. Well before then, under the headline “Right Fears Roberts Going Soft,” Josh Gerstein observed a year ago in Politico that conservatives were expressing toward the chief justice “a kind of buyer’s remorse that could result in even more pressure for ideologically pure nominees.”

That prophecy came dramatically to pass during the Republican debate when an organization called the Judicial Crisis Network (it called itself the Judicial Confirmation Network during the pre-Obama years, when its mission was to see nominees to the federal bench confirmed rather than blocked) ran an anti-Roberts spot labeled “No Surprises” that displayed head shots of the chief justice flanked by JusticeAnthony M. Kennedy and — implausibly —David H. Souter.

What to make of it? As Adam White tweeted, “Linda Greenhouse summarizes everything she’s ever written, in two sentences.”

The attacks from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received.

True enough, but Greenhouse seems surprised by this new vast right-wing judicial (Volokh?) conspiracy.

Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.

And who is this “increasingly influential segment of the conservative elite”? Apparently George Will, Randy Barnett, and me?! Greenhouse explains:

The problem, from the point of view of the chief justice’s critics, isn’t only that he voted the wrong way, but that on a deeper level, he didn’t get the memo. John Roberts is conservative, beyond any doubt, but he’s a 20th-century conservative in a 21st-century world.

Remember when “judicial activism” was a nasty label that conservatives hurled at liberals and when “legislating from the bench” was the worst thing a judge could do? Not, it seems, any more. Josh Blackman and Randy Barnett, two law professors who are advising Senator Rand Paul’s presidential campaign (Professor Barnett was an architect of the first Affordable Care Act case), wrote in the conservative Weekly Standard last month that “presidential candidates should reject the vapid labels of ‘restraint’ and ‘legislating from the bench.’ ” Rather, they argued, “The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about ‘strict constructionism’ or ‘calling balls and strikes’ during a confirmation hearing.” In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.

In a variation of that theme, the columnist George Will, in a piece that went viral in the conservative blogosphere during midsummer, castigated Chief Justice Roberts for, of all things, his dissenting opinion in the same-sex marriage case. It was not that Mr. Will, often a reliable barometer of inside-the-Beltway conservative thought, had suddenly embraced marriage equality. Rather, he objected to what it was the chief justice was objecting to in Justice Kennedy’s majority opinion.

This morning after I read Linda’s column, I felt a disturbance in the #SCOTUS force. The discussion of judicial engagement is not new. My good friends at IJ, led by Clark Neily, have been discussing this topic for years. Ed Whalen and Clark had an extensive debate on the topic. But what changed? The Chief Justice’s decisions in NFIB, and King v. Burwell created a ripple, a cognitive dissonance if you will, in the way conservatives approach judicial selections. They realized that the strategy they stuck with–the strategy that perhaps a young John Roberts adhered to in the Reagan White House–hadn’t panned out. So maybe they should try something new? And this is what Greenhouse’s column reflects. 2017 will be different–as Leonard Leo made clear during the FedSoc’s recent panel on judicial nominations:

Update: As Evan Bernick tweeted, Greenhouse wrote about judicial engagement in a 2011 piece titled “Actively Engaged.”

In this new topsy-turvy world, judicial restraint, which used to be a good thing, is now bad. There is a “false dichotomy,” the center’s declaration informs us, “between improper judicial activism and supposedly laudable judicial restraint.” Restraint meansabdication by judges who fail to do their duty. “Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”

I suppose what is new is that we are no longer just talking about IJ, but the “increasingly influential segment of the conservative elite” that is now shifting how Republicans appoint judges.