In an op-ed published seven years ago, shortly after President George W. Bush nominated John Roberts to serve on the Supreme Court, I chided my fellow liberals for threatening to oppose Roberts. Although Bush had promised to appoint Supreme Court justices like those he most admired -- Antonin Scalia and Clarence Thomas -- I argued that, "in nominating John Roberts, Bush has broken that promise, to the great good fortune of the American people."
I conceded that Roberts would not have been "my choice for the Court." He was, after all, "a dyed-in-the-wool conservative" whose confirmation would clearly "move the Court even further to the 'right.'" But I opined that everything about Roberts suggests "a principled, pragmatic justice who will act cautiously and with a healthy respect for precedent." I predicted that he will decide cases "in an open-minded, rigorous, intellectually honest manner, rather than as an ideologue whose constitutional principles derive more from fiction and faith than from legal reason."
For the past seven years I have pretty much eaten those words. Almost without exception, Chief Justice Roberts has adhered to a rigid and generally extreme conservative line. Moreover, in so doing, he has often acted in complete disregard of precedent and of the much-celebrated conservative principle of judicial restraint. Examples include the Court's decisions on such diverse issues as late-term (so-called "partial birth") abortion, the death penalty, campaign finance, affirmative action, gun control, and the rights of Guantanamo detainees. Like Justices Scalia, Kennedy, Thomas and Alito, Roberts has consistently interpreted the Constitution in ways that mimic conservative political ideology. He has, in short, been a great disappointment -- at least to me.
Now, finally, with his vote in the Affordable Care Act case, I have suddenly been... vindicated! After all, I did say in that 2005 piece that, "like many conservative appointees, there is every reason to believe that Justice Roberts will gradually drift to the 'left,' following in the footsteps of Justices Blackmun, Powell, Stevens, O'Connor, Kennedy, and Souter. Appointed as conservatives by Republican presidents, each of these justices evolved over time. Because they were not tethered to an inflexible ideology, they remained open-minded and continued to learn and to grow during their time on the Court." Has Justice Roberts now begun to "drift"?
It is, of course, much too soon to know whether Roberts' vote to uphold the Affordable Care Act implies that he is finally coming to his senses. This may be much ado about nothing -- merely a one-off hiccup in an otherwise long, depressing and dependably very conservative tenure.
What is most interesting to me about the current situation is not Roberts' vote, but the stunningly venomous conservative response. Conservatives are furious with John Roberts. But why? Sure, he disappointed them, but justices often disappoint their fans. Their job, after all, is to apply the law in a neutral and detached manner, not to please any particular political faction.
Many justices have voted for positions that disappointed their fans. Justice William O. Douglas voted to uphold the Japanese-American internment in World War II. Chief Justice Warren Burger upheld the right to abortion in Roe v. Wade. Justice William Rehnquist voted to require President Nixon to turn over the infamous White House tapes as part of the Watergate investigation. Justice Ruth Bader Ginsburg voted against granting President Bill Clinton immunity in the Paula Jones case. Justice Felix Frankfurter voted to uphold the constitutionality of the compulsory flag salute. Yet in none of those instances did the fans of these justices excoriate them with the sort of vituperation that conservatives have directed at Chief Justice Roberts.
Indeed, some of Roberts' critics are so upset that they've completely lost their constitutional bearings. Although they cheered the Chief Justice when he voted to hold unconstitutional affirmative action programs, gun control laws, campaign finance regulations, and laws regulating corporate commercial advertising, they lambasted him for upholding the Affordable Care Act because he had "abandoned the principle of judicial restraint." Talk about being befuddled by anger. The earlier cases were all classic examples of aggressive judicial activism (because they overturned acts of the elected branches of government), whereas the Affordable Care Act decision was a classic example of judicial restraint (because it gave the benefit of the doubt to the elected branches). These conservative critics seem to define "judicial restraint" as decisions they like and "judicial activism" as decisions they dislike. This is Alice in Wonderland jurisprudence!
Why have conservatives gone over the cliff in their anger at Roberts? Why can't they just accept that the Chief Justice disagreed with them about one of several very complex constitutional issues presented in this case? The answer, I think, goes back to Bush v. Gore. Although the Supreme Court has always been accused on occasion by one side or the other of being "political" in its decision making, in the twelve years since Bush v. Gore the conventional wisdom has come to accept that justices now do little more than vote their politics -- or, more accurately, the politics of their "constituents."
Unfortunately, the current Court has done little to dispel this dangerous belief. With five-to-four decisions in virtually every important case, and with the four very conservative justices almost invariably lined-up on one side, the four moderate liberal justices lined up on the other, and the (generally) conservative Anthony Kennedy usually casting the deciding vote, the public has come to see eight of the nine justices -- and especially those in the very conservative bloc -- as completely predictable in their judging: they are expected to vote the way conservative politicians would vote on the laws being challenged.
Conservatives have come to think of Roberts, Scalia, Thomas and Alito as "their" boys, as if they had elected them to do their bidding. What infuriates them about Roberts at the moment is that he has betrayed their expectations by revealing an unexpected independence of mind. The fault for this deplorable state of affairs -- in which conservatives think of Roberts, Scalia, Thomas and Alito as their representatives on the Court -- lies squarely with the conservative justices themselves. By voting reflexively for conservative political positions, and even worse by their occasionally blatant political partisanship, they have created the expectation that the Supreme Court, or at least their wing of the Court, is merely an appendage of the Republican Party.
If the conservative justices had been more modest, more respectful of precedent, and more fair-minded in their jurisprudence, they would not have created this expectation. Chief Justice Roberts is now paying the price of being seen as a turncoat. Hopefully, the lesson he will take away from this sorry episode is not that he must get back in line, but that he must finally become the Chief Justice he promised to be in 2005.
This piece was co-authored with Jane Dailey, Associate Professor in the Department of History and the Law School at The University of Chicago.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more