Postmodern Conservative

Roberts as Idiononpartisan

So you would not believe how many messages of various kinds I got saying that nobody agrees with my claim that our chief justice displayed a kind of consistency in his votes and his opinions in the Obamacare and SSM cases. Most of the conservative and libertarian commentators were all over his alleged hypocrisy. But the mainstream liberal Washington Post columnist Ruth Marcus is now on board. She calls the consistency of his choices to uphold the existing law NONPARTISAN. Ms. Marcus doesn’t agree with him on the SSM case, which, if you think about it, makes her a partisan. Actually, her inconsistency makes her doubly partisan, insofar as in both cases her interpretation of the Constitution seems spun a bit or more to correspond with her policy preferences.

We have to add, of course, that no other justice agrees with Roberts’s consistency. That would make him an IDIONONPARTISAN (that neologism is very democratic in its eclectic classicism). And I have to admit there’s a case for all the other justices seeming more partisan, insofar as, despite their protestations, all of their constitutional interpretations (except maybe Kennedy’s on Obamacare) seem to correspond to their partisan views. If we could all agree with Roberts on the general observation that the Court has become too partisan, we might actually be getting somewhere. 

In thinking about the extent to which a justice should take into account the practical effects of his ruling, consider this: Had Roberts been the key vote in the SSM case, he might have lurched in the other direction. After all (mostly owing to the work of courts), the existing law in most states allowed SSM. An obvious subtext of the the Roberts and Kennedy votes on Obamacare was a consideration of the chaos that would ensue if such a huge and intrusive law were suddenly disabled. Along the same lines, imagine the chaos with respect to all those SSMs performed in those states that can now choose again not to allow them. And: One reason among many, many that there’s no chance that the Court’s ruling last week will be reversed is that Roberts’s statesmanlike doctrine of practical effects would point against reversal:  It was judicial activism to impose SSM on the states, but it would be equally so to un-impose. It was thinking along those lines that caused the Court to make such a mega-deal bout Roe as a “watershed” precedent.

So while I respect the integrity of Roberts’ efforts to be a humble and nonpartisan judicial statesman, it’s easy to see the limits of his position. If he’s performed a service, it’s to remind us that it’s unwise to expect the Court to protect us from anything, including the Court.

In his fine post below, Flagg (especially with the help of one of the threaders) leads us to the conclusion that Kennedy’s reasoning (marginally tethered to the Constitution) is that of a liberal or progressive Catholic. It’s loving and relational, but informed by an anti-judgmental, newly inclusive “insight” that’s “a sign of the times.” Meanwhile, all the dissenters tended to write with the concerns of conservative (or more orthodox) Catholics in mind. I’m writing something up that will show the whole darn thing is a kind of intramural Catholic dispute, with the non-Catholic libertarian originalists thinking that one side is wrong, and the other side wronger, when it comes to actual interpretation of the Constitution.

What are my two favorite Fourth of July popular songs? Well one is performed by Lee Greenwood, and the other by Jimi Hendrix. How about that for nonpartisan?

And who are the two surgers in the polls?  Bernie Sanders and Donald Trump.  Now that would be quite the choice in November

Peter Augustine Lawler — Peter Augustine Lawler is Dana Professor of Government at Berry College. He is executive editor of the acclaimed scholarly quarterly Perspectives on Political Science and served on President George ...

Most Popular


Four No Trump

I went to see Book Club, a multi-pronged romantic comedy that provides a vehicle for four veteran actresses (Jane Fonda, Diane Keaton, Candice Bergen, and Mary Steenburgen), and it's not bad if you accept it for what it is. The set-up is that four women who formed a book club in the 1970s have been meeting ... Read More

Are Americans Too Attached to Their Pets?

Like many Americans, I’m a big fan of dogs. As my wife and I prepare to become empty-nesters, I’ve noticed that we’re spending more time obsessing over our family pooch, perhaps because he actually still wants to hang out with us. In recent years, however, our society’s relationship with pets appears to ... Read More
White House

Trump the Outsider

Yesterday morning, President Donald Trump offered a series of tweets complaining about what he considers the disparate treatment of his presidential campaign compared with Hillary ... Read More

Treasury Secretary Mnuchin Wins, America Loses

Derek Scissors of AEI has a sour take on the latest turn in U.S.–China trade talks: If there’s good news, it’s that the Trump administration has fallen silent on whether the U.S. will bend our law for China in the ZTE case, which got so much attention last week. That would be a big step backward. But even ... Read More

Jonathan Swift in a White Suit

In 1965 Tom Wolfe visited Princeton University for a panel discussion of "the style of the Sixties." The author of The Kandy-Kolored Tangerine-Flake Streamline Baby, published that year, was scheduled to appear alongside Günter Grass, Allen Ginsberg, and Paul Krassner. Grass spoke first. The German novelist's ... Read More

Comedians Are Catching On

The comedians are beginning to catch on. Over the weekend -- just one week after featuring a bevy of top-line Hollywood stars impersonating members of the Trump administration, as well as a cameo by a vengeful Stormy Daniels asking for President Trump’s resignation -- Saturday Night Live finally acknowledged ... Read More
PC Culture

The Nature of Progressive Insensitivity

Former vice president Joe Biden is back in the news yet again. For a second time, he seems surprised that poor residents of the inner city are capable of doing sophisticated jobs: We don't think ordinary people can do things like program, code. It's not rocket science, guys. So, we went and we hired some folks ... Read More

The Feminization of Everything Fails Our Boys

Let me share with you two troubling — and, I believe, closely linked — news reports. The first, from this weekend, comes courtesy of the American Enterprise Institute’s Mark Perry. In one chart, he highlights the dramatic and growing gender gap in higher education. In short, women are dominating: ... Read More