Amidst the cries of pain against Chief Justice Roberts, I have done a little crying myself. You’ll find it in today’s Impromptus. Allow just a little more crying here.
A few have asked me, “Do you think Roberts violated the Constitution deliberately?” No, no. I think he bent over backward to uphold the legislation. I think he called on his maximum cleverness to uphold it. I think he knew better — but convinced himself he had found a path to upholding.
Why did he act as he did? Don’t know, of course. I do know that standing up to left-liberal pressure, for lack of a better shorthand, can be very difficult. The conservative road is often a hard one. I have addressed this topic many times.
As I did in a recent column, which cited Peter Collier’s new biography of Jeane Kirkpatrick (splendid bio, too). Kirkpatrick left the Democratic party at an even later age than Reagan — Reagan was 51, Kirkpatrick was 59. She had been in the bosom of the Democratic party, a member of HHH’s circle. (That’s a reference to Humphrey, for those who have forgotten.)
The Left did not take kindly to her apostasy. Gloria Steinem called her “a female impersonator.” Naomi Wolf said she was “a woman without a uterus.” (Kirkpatrick had had three children at that point, Wolf none.) It was a wrenching experience for Kirkpatrick to join the Republican party. “I’d rather be a liberal,” she said.
Did you notice the venom recently directed at Wisconsin’s governor, Scott Walker? The near-violent hate? This was slightly unsettling, I thought, in a democratic society. Our Right has behaved badly too, no doubt, from time to time.
Life tenure at the Supreme Court, and other courts, is supposed to shield a person from pressure. But it doesn’t quite. You are still subject to gales. A desire for approval can be at odds with fidelity to the Constitution. A desire for unity — “Can’t we all just get along?” — can be at odds too.
But I must not play Roberts’s shrink. It’s hard enough to be a political reporter or opinionist. (A good one, that is.)
In my column, I say that we should remember separation of powers, a.k.a. checks and balances. It’s not enough to say, “You know, there’s always another election. If you don’t like what the ‘in’ guys are doing, throw ’em out.” Incumbents still have to obey the law. They have to follow the Constitution. And each branch has a role to play. If a law is unconstitutional, Supreme Court justices have a duty to say so — that’s a “check.”
I have expressed this breezily, here and in Impromptus. But the dissenters in the Obamacare case put it more formally, more elegantly, and better:
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections — notably, the restraints imposed by federalism and separation of powers — are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
A final word, from me: In Impromptus, I have a little fun with the New York Times’s language — “moderate liberals” (to describe the left side of the Court), “white Hispanic” (to describe the shooter in that awful Florida case). I forgot a classic: “ultra-liberal,” to describe Angela Davis.
This is a woman, bear in mind, who was the vice-presidential nominee of the CPUSA, the American Communist party. If she’s ultra-liberal, what’s Pol Pot? Ultra-ultra liberal?