In the New York Times, Linda Greenhouse: A Chief Justice Without a Friend. An excerpt:
The attacks [on Chief Justice Roberts] from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received. Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.
…
An article in the conservative Washington Times in July called him “an outcast among conservatives” who “feel deeply betrayed” and who “say it’s too late for him to salvage his credibility with them.” …
The problem, from the point of view of the chief justice’s critics, isn’t only that he voted the wrong way [in the Obamacare cases], but that on a deeper level, he didn’t get the memo. John Roberts is conservative, beyond any doubt, but he’s a 20th-century conservative in a 21st-century world.
Remember when “judicial activism” was a nasty label that conservatives hurled at liberals and when “legislating from the bench” was the worst thing a judge could do? Not, it seems, any more. Josh Blackman and Randy Barnett, two law professors who are advising Senator Rand Paul’s presidential campaign (Professor Barnett was an architect of the first Affordable Care Act case), wrote in the conservative Weekly Standard last month that “presidential candidates should reject the vapid labels of ‘restraint’ and ‘legislating from the bench.’ ” Rather, they argued, “The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about ‘strict constructionism’ or ‘calling balls and strikes’ during a confirmation hearing.” In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.
(Thanks to Michael Perry for the pointer).
Sounds familiar (see here). And the Chief has some friends — John McGinnis (and me, mostly). But I find this particular account wrong on several larger grounds.
(1) The idea that conservatism (in the good old days) meant judicial restraint oversimplifies. Mainstream conservative legal thought has always called for judges to invalidate statutes and executive actions that violate the Constitution. It's true that conservatives centrally objected to activist decisions from the Warren and early Burger courts. But modern conservative criticism of the Court has always focused on judges making up things that weren't there and ignoring things that were. And conservative Justices have not hesitated to act against unconstitutional laws; Justice Scalia, for example, has been at the forefront of enforcing separation of powers, federalism, speech rights, gun rights, and property rights — and criticizing the Court when it failed to do so — since his appointment (as, mostly, has the Chief Justice). There's nothing new about conservatives calling for judges to find things unconstitutional.
(2) A libertarian strand of conservative legal thought, sympathetic to Lochner and an aggressive view of the Ninth Amendment, is also a long-standing phenomenon. I agree with Greenhouse that it has gotten somewhat stronger recently and that George Will's conversion to it is noteworthy. But it remains a minority in conservative legal thought, and many intellectual leaders on the right — including Scalia — reject it without incurring much wrath from conservative commentators.
(3) In any event, the (supposed) rise of Lochner-inspired libertarian thought has nothing to do with the conservative Obamacare-driven criticism of Chief Justice Roberts. The conservative critique of Roberts isn't that he should be doing something beyond "calling balls and strikes"; it's that he isn't calling the balls and strikes correctly. Things that aren't taxes shouldn't be called taxes just because it's convenient; statutes should be read as they are written, not the way the Court wishes they had been written. As I've said, I think these criticisms are overblown, but in any event they aren't at all related to a supposed new embrace of Lochner.
Greenhouse, I think, is trying to create a scare narrative of a radical shift in conservative objectives that has left the cautious Chief Justice behind. But I see little ground for it; the fundamental principles of conservative legal thought are roughly what they've been for a long time, and apart from a couple of aberrational cases they are consistent with the Chief's views as well.
Posted at 6:05 AM