Friday, June 29, 2012
John Roberts is the only true conservative on the Supreme Court
Today right-wing America is aghast at Justice Roberts' treason. (And they hardly notice the fact that three of the Court's "liberals" voted with the conservatives to kill the Medicare mandate).
But in fact Justice Roberts proved yesterday that he's the only true conservative on the Court.
That is, IF you define "conservative" as a political philosophy, and not as a set of political positions.
That's the mistake most self-styled conservatives and liberals make.
The essence of conservatism is respect for established institutions, for the rule of law, for tradition, for doing one's job with a measure of humility.
The job of Supreme Court Justice--and most especially Chief Justice--was described by Justice Roberts during his confirmation hearings. He said it was not to usurp the roles of the Executive branch or Congress. It was to favor narrowly-defined decisions supported by most or all the Justices over sweeping, precedent-overturning decisions by 5-4. It was to subordinate one's own political preferences to the Court's role of simply determining whether a law passes Constitutional muster or not.
And--here's the kicker--to actively seek reasons to uphold laws passed by elected representatives of the People, even if they weren't the reasons set forth by the law.
You don't look for reasons to overturn laws that run contrary to your own political philosophy. You don't ignore precedent in considering laws that run contrary to your own political philosophy.
And you don't do things that suit the specific positions of your political philosophy but which would also damage one or more of the core institutions of the country.
There's no reason to believe that Justice Roberts' opinion of ObamaCare differs from that of Scalia, Alito, Thomas, and Kennedy. But unlike them, Roberts doesn't believe in legislating from the bench. Roberts--at least in the clinch--doesn't believe in being an activist judge.
He knows that the SCOTUS decision that inflicted Bush II's mix of mediocre ability and vaulting ambition on this country damaged the reputation of SCOTUS seriously. And SCOTUS has neither an army nor an elected legislature. It depends entirely on the "consent of the ruled-on" so to speak.
No student of SCOTUS can forget President Andrew Jackson getting a ruling that didn't suit his genocidal approach to Indian relations and telling the Court to go enforce it themselves.
No one can know whether Roberts thought that he might kill two birds with one stone in this decision: help to restore the Court's legitimacy in the aftermath of Citizens United (which 80% of Americans believe was wrongly decided, according to a 2010 ABC News-Washington Post poll), while at the same time helping to rally conservative voters to defeat President Obama, upon which a President Romney and a Tea Party-dominate Congress would gut the bill by defunding it and giving all the states waivers. Certainly no one thinks Roberts is President Obama's BFF after the latter hectored the former to his face in Obama's state of the union address following the decision.
It's also conceivable that Roberts is looking to his place in the history books. No doubt he'd love to see the Roberts Court revered...and, perhaps, remembered as the Roberts Court and not the Kennedy Court (since Kennedy's swing vote has determined so many decisions.)
Whatever Roberts' motivations, with this decision he showed what true conservatism looks like, which is at its essence an antecedent morality--making decisions that hew to the promises you made to get the job, and working as the SCOTUS chief justice to rule on a law's constitutionalty--period.
That said, the SCOTUS conservative majority just reinforced its belief that money is protected speech in smacking down the Montana case, and Citizens United is a far bigger decision than this one.
Still, it's a good sign. And it does establish Justice Roberts as the closest thing to a true conservative that President Eisenhower would recognize. Conversely, it also establishes Justice Alito as the most doctrinaire justice--not Scalia or Thomas--because Alito is the only one of the five conservative justices who has never delivered a swing vote, going along with the more liberal justices. That surprised me to find out, because he doesn't wear his politics on his sleeve like Thomas and Scalia do.
As you talk with conservatives, try this tack with them. Encourage them to think more about conservative principles, and less about conservative positions. Oh, and while you're at it, ask them what they think about the quarter-billion dollars the healthcare insurance (until you actually need it) industry has spent on manufacturing public opposition to healthcare reform. Do they really think that kind of political leverage (against miniscule money toward the other side) bodes well for our republic?