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Bench Memos

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No One Ever Turns On You Quite Like Your Friends



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Thanks to Ed for his follow-up to my long post from earlier today, with which I quite agree, and thanks to Carrie for more evidence for my thesis.  (And doesn’t Rosen perfectly express Ed’s Biercean definition of “judicial statesmanship”?)

The nadir for commentary on Roberts has to come from Curt Levey of the Committee for Justice, who writes at Big Government about the “Top Ten Takeaways from the Obamacare Decision.”  His number 4 is this:

#4: Obama and company’s attempt to cow the Supreme Court succeeded.

Harvard Law School Professor Noah Feldman writes that:

“Roberts knew the consequences of striking down the individual mandate: He would have been attacked by the president and the news media as the chief of the most activist conservative court since the 1930s.”

One way or another, the pressure apparently got to Roberts. Professor Lawrence Solum of Georgetown Law expresses the conclusion of many that language in the four-Justice dissent “is highly suggestive of a majority opinion.  …  This suggests that Justice Roberts switched his vote.”

This problem is nothing new.  Moderately conservative appointees to the Court often drift to the left over time. I chalk it up to them caring too much about their reviews in the Washington Post.

This is a dismal performance, I must say.  First of all, the quote from Feldman is selective.  The political explanation, Feldman said, was “one possibility.”  But in the immediate sequel, he wrote “Then there is that most old-fashioned of motivations: principle.”  Bravo for Professor Feldman.

But Levey thinks “the pressure apparently got to Roberts,” that he was “cowed,” and that he cares more about his “reviews in the Washington Post” than in in the integrity of the law or the defense of the Constitution.  In short, to translate into more direct language, Levey thinks Roberts is a liar (since he must have written an opinion he did not believe, or else what did “pressure” accomplish?), that he is a coward (this is what we say of people who can be cowed), and that he is hungry for love from the people who have attacked him for the last seven years.

Nice work, that.



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