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