The Corner

Justice Roberts — Tragic Figure

Chief Justice John Roberts, a good man who apparently thought he was doing the right thing, is increasingly taking on the character of a lone figure from classical Greek tragedy. If one collates all the news reports, rumors, and scuttlebutt, and if they are mostly credible, one learns of his tortured switch. It was perhaps prompted by a genuine desire to mitigate the Court’s “partisan” reputation, or to establish Roberts in the long tradition of a Warren or Souter, as a jurist who “evolved” on the Court in a fashion that pleases the influential in Washington and New York—or both. (And indeed, those who were vilifying him before the verdict were the first to heap praise on his judicial statesmanship—at least for now.) The tragedy is that, as the story comes out, the reputation of the Court will sink not rise, as—fairly or not—it appears overly sensitive to public opinion and liable to capitulate to such pressures in mediis rebus.

Roberts, who wanted to cement his reputation as a sober and judicious jurist, through his Hamlet-like deliberations ended up seeming incoherent, tentative, and unsure of himself. And if it’s true that rumors of Roberts reconsidering his vote swirled in Washington prior to the final outcome, and that such perceptions of hesitation prompted renewed venom and pressure — from not just the media, but from those such as Senator Leahy (who had voted to confirm Roberts) on the floors of Congress, and the president himself (who attacked the Court even earlier in his State of the Union address) — then the Court comes off as far more suspect after the opinion than before. Everything Roberts wished to prevent he ensured.

The final irony is that for years liberals preached about the sanctity of the Court as it overturned legislative mandates, but in this case, Roberts was treated like a bleeding whale in a sea of sharks, or as a wavering political candidate who could either be enticed or pressured to flip-flop. This was done against a larger backdrop in which “moderately” liberal and “open-minded” jurists were expected to follow liberal orthodoxy without exception, while “arch” conservative and “blinkered” jurists must be peeled away from their political instincts. In other words, if a Breyer or Kagan had been the swing vote to nullify Obamacare, the outrage from the left would easily trump the present disappointment with Roberts on the right, which for the most part is largely one of keen disappointment, or confusion over his garbled logic, or pathetic efforts to find in his decision some ray of hope.

Victor Davis Hanson — NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author, most recently, of The Second World Wars: How the First Global Conflict Was Fought and Won.

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