Blaming the Chief Justice by Linda Greenhouse

[elleng]

Last edited Thu May 12, 2016, 11:21 PM - Edit history (1)

'Do you hold Chief Justice John G. Roberts Jr. responsible for the ascendancy of Donald Trump? The thought never crossed your mind? Then you probably haven’t been reading the conservative blogosphere, where Chief Justice Roberts, target of bitter criticism for his failure to vote to dismantle the Affordable Care Act, is now being blamed in some quarters for Donald Trump as well.

The emerging narrative, reduced to its essentials, goes like this: . . .

Now it’s judges who decline to strike down laws who stand accused of being political. Not so long ago, “judicial restraint” was a conservative goal against which judicial performance was measured. Now it’s an epithet hurled at, of all people, Chief Justice Roberts, whose opinion four years ago gutting the Voting Rights Act of 1965 on the basis of a newly manufactured theory of federalism was undoubtedly one of the most activist of all recent Supreme Court decisions. That was the good kind of activism, it seems. Nothing political there. It’s judicial restraint that’s political.

Are conservatives at all abashed at taking the vocabulary they grew up with and flipping it so openly? I see little sign of that, but I do think the energy behind the blockade of the Garland nomination is fueled by anxiety not only about what a more liberal court might do but in equal measure by what a judicially restrained court would not do. The fear of judicial restraint runs deep. Ilya Shapiro, the Cato Institute scholar who blamed John Roberts for Donald Trump, expressed it vividly. Lamenting the failure of the attack on the Affordable Care Act, he wrote, seemingly without irony: “Constitutional conservatism simply couldn’t survive judicial conservatism.”'

http://www.nytimes.com/2016/05/12/opinion/blaming-the-chief-justice.html?

[Igel]

1. Conservatives are taking the language *we* grew up with and flipping it.

That said, there is no monolithic "conservative."

Judicial restraint was used in the '70s and '80s in the context of judges finding new rights and imposing remedies.

Suddenly X has always been Constitutional. Suddenly states need to raise taxes to fund Y, which is new but has always been a Constitutional requirement. Yes, the law has been around for 50 years and never interpreted to mean Z, but not it's determined that it's always meant Z.

At one point a judge found that something needed to be done and told the NY State legislature it had so many weeks or months to raise taxes to Make It So. Otherwise the judge would impose the required taxes--and, IIRC, did so. Somehow the judiciary was invested with taxing authority (because, it was argued, the laws implicitly required the taxes to be imposed, and that was the legislative taxation authority required). That was new. And controversial.

The idea of "judicial restraint" meaning "not throwing out laws" died in the early 1800s. Judicial review has been established by judicial precedent for 200 years.

In the '50s a lot of social advances occurred, to liberal approbation, by having courts chuck out laws. Often because of newly broadened or found rights and the concomitant obligations imposed on others to ensure or tolerate or facilitate or fund those rights. Conservatives, winning in the legislatures, didn't like this kind of judicial supremacy. Only extremely stupid and idealists (often also stupid) people tried to make this argument.

It was when conservative courts started throwing out laws when liberals were winning in the legislature that suddenly tossing laws became evil and bad. This reinterpretation of "judicial restraint" was self-serving twaddle, and the hypocrisy reeked. In living memory, throwing out laws was good and just. Judicial restraint now includes not finding additional rights, but this is sensitive: If a new right that we don't like is found, it's unmitigated partisan evil; if it's one that we do like, then the courts are finally doing their moral job.

The gloves came off a decade or two ago. Conservatives use the rhetoric openly that I heard here when I joined in 2004. I didn't hear that rhetoric when I knew a lot of conservatives back in the '80s and early '90s. I did, however, hear it from the progressives I knew. That's the real change.

[bemildred]

2. They think it's clever, the conservatives, the sort of judicial chickanery we've seen.

Scalia was very fond of stretching the law to fit his prejudices.