Poor Chief Justice John Roberts. Those mean liberals are picking on him again.
Washington Post columnist Kathleen Parker wrote a commentary this week melodramatically entitled, "The Public Trial of Justice Roberts." The Wall Street Journal editorial page chimed in with its own pearl-clutcher called, "Targeting John Roberts," and subtitled, "The left tries to intimidate the High Court on ObamaCare." Investors Business Daily then joined the fray with "Left Targets Chief Justice Roberts to Save ObamaCare," which leads breathlessly with the statement that, "Controlling the politically insulated federal courts, especially the Supreme Court, has long been atop the left's to-do list. Since it doesn't own Chief Justice John Roberts, now the game is to shame him." Rest assured, Fox News is on it, too, along with others in the conservative commentariat.
Interestingly, many of these fevered commentaries use virtually the same language (someone clearly sent around a persuasive set of talking points), and all warn of a vast left-wing conspiracy to somehow bludgeon John Roberts into submission on the health care case.
So what outrageous occurrence threatens to bring the apparently fragile John Roberts to his knees? Calls for impeachment? No, those are reserved for people like Earl Warren. Threats to haul him and his brethren before congressional committees to force them to explain themselves? No, sorry, that's an approach to recalcitrant justices recently floated by Newt Gingrich.
Brace yourself. Yes, the full force of the right-wing media machine has apparently been prodded into a posture of high dudgeon largely by a floor statement by that noted fire-breather, Senate Judiciary Committee Chairman Patrick Leahy.
Apparently, some people fear John Roberts is poring over the more obscure pages of the Congressional Record and feeling the heat. Ms. Parker refers to the Leahy statement as a "not-so-stealth campaign to influence the Supreme Court," which is "obnoxious, if not unethical." The Wall Street Journal calls it both an effort at "taunting" and "publicly lobbying" the hapless justice.
So, what exactly did Chairman Leahy say that has caused Marbury and Madison to roll over in their graves? He stated the obvious.
The Court, he noted, through decisions like Citizens United and Bush v. Gore, is increasingly perceived as ideological. Polls show a weakening of respect for the Supreme Court and a growing perception that politics intrudes in its decisions. Leahy noted that during oral arguments in the health care case, "it seemed that the Justices were second guessing the policy judgments that were made during the extended legislative process," and that "Acting out based on their personal views ... would be the height of conservative judicial activism."
He feared the health care cases are instances "in which narrow ideology and partisanship are pressuring the Supreme Court to intervene where it should not, to override the law and constitutional understandings that have been settled since the Great Depression, and to overturn the actions of the people's elected representatives." Leahy then said what most people believed to be true before the oral arguments took place: "The law is consistent with the understanding of the Constitution that the Court and the American people have had for the better part of a century, and should be upheld. To do otherwise would undoubtedly further erode the reputation and legitimacy of the Supreme Court. Last month's Supreme Court argument gave me reason to hope that the Court will do the right thing."
Feel the intimidation!
Chairman Leahy then put his finger on the thing that does, in fact, make many Americans anxious, particularly in light of the ideological nature of the oral arguments: "... partisan opponents of President Obama want judges to override these legislative decisions properly made by Congress.... They want to challenge the wisdom understood by generations of Supreme Court justices from the great Chief Justice John Marshall in upholding the constitutionality of the national bank nearly 200 years ago to Justice Cardozo in finding Social Security constitutional early in the last century."
There's grave concern that the policies of the New Deal, the Great Society, and other manifestations of social progress and economic justice are truly threatened. Don't Kathleen Parker, the Wall Street Journal editorial page, and Fox News want precisely that outcome? Isn't the unraveling of post-New Deal policies the goal of Republican budget proposals and the subtext of virtually every conservative political campaign? Why would anyone assume the conservatives on the Court are different from conservatives outside the Court?
The conservative majority time and again reaches beyond the normal bounds to deliver conclusions that virtually always favor corporate interests or echo the Republican agenda. It hears cases it doesn't need to hear (Janus Capital Group v. First Derivative Traders and PLIVA v. Mensing); answers questions not brought before it in the original case (Citizens United v. FEC and Walmart v. Dukes); makes up new laws out of thin air (Exxon v. Baker and AT&T Mobility v. Concepcion) and makes factual determinations that are supposed to be made by lower courts (Ashcroft v. al-Kidd). Then, of course, there is Bush v. Gore, which exists in its own category of infamy.
One need look no further for evidence than Jeff Toobin's epic article in the New Yorker about how John Roberts and the conservative majority willfully and deliberately manipulated the Citizens United case to reach a pro-corporate decision that overwhelmingly benefits Republican candidates.
It's ironic to listen to conservatives complain that all of a sudden it is illegitimate to criticize the Supreme Court when they've built a big chunk of their movement doing precisely that. How much money has been raised or votes sought by appeals centered on Roe v. Wade, affirmative action, the Second Amendment, or for that matter, Brown v. Board of Education, which helped consolidate the South for the Republican Party?
I assume the Right is not actually feeling intimidated by a polite and respectful speech by the genteel Patrick Leahy, nor does it actually fear that John Roberts will be. This little barrage of silliness about "public trials" and "intimidation" is just a bit of political theater and red meat for the base. It's part of the unshakeable conservative belief that hyperbole in the defense of conservatism is no vice.
But it does point to one thing for which I have to give the conservative movement credit: this stuff is fodder for the base because their base cares deeply about the Supreme Court. That's not always true on the other side. Perhaps Chairman Leahy's speech shouldn't have been directed at John Roberts; maybe its better purpose is to serve as a reminder to progressives that courts matter and that what he calls "the cornerstones of American economic security built over the last century" now hang in the balance.
Update: Now George Will enters the fray to remind Sen. Leahy that John Roberts has a "spine of steel," which apparently the chief justice will need in order to resist the cyclonic force of the threatening rhetoric that is raining down upon him from "patronizing" senators and "cheeky" law professors.
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