In today’s Washington Post:
In one of his characteristic conniptions about people who frustrated him, Theodore Roosevelt, progressivism’s first president, said of Justice Oliver Wendell Holmes, “I could carve out of a banana a judge with more backbone than that.” TR was as mistaken about Holmes’s spine as are various progressives today about Chief Justice John Roberts’s.
They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional. . . .
[Senate Judiciary Committee Chairman Pat] Leahy tutored Roberts about “appropriate deference” to “the elected branch,” vacuously admonished him to be “a chief justice for all of us” and absurdly asserted that the mandate is “consistent with the understanding of the Constitution” that “the American people have had for the better part of a century.”Jeffrey Rosen of George Washington Law School, writing in the New Republic, topped Leahy’s rhetorical extravagance by saying this is Roberts’s “moment of truth” because, if the court overturns Obamacare 5 to 4, Roberts’s “stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”
Oh? Viewed by whom? Perhaps by people who consider it “ideological” and somehow reprehensible that in the last full term, Justices Roberts and Sam Alito voted together 96 percent of the time, but who consider it principled and admirable that Justices Sonia Sotomayor and Elena Kagan voted together 94 percent of the time. Like-minded justices agree. So?
Why, exactly, would it be less “divisive” for the court to uphold the broadly disliked Obamacare 5 to 4 than to overturn it 5 to 4? But whether Obamacare is liked or detested is entirely irrelevant. The public’s durable deference toward the Supreme Court derives from the public’s recognition that the court is deferential not to Congress but to the Constitution.
Concerning which, it is cheeky of Rosen, a liberal, to lecture Roberts about jurisprudential conservatism, which Rosen says requires “restraint,” meaning deference to congressional liberalism. Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.
Read the whole thing here.