When conservative president George W. Bush, having promised to nominate conservative Supreme Court justices like Scalia and Thomas, selected life-long conservative John Roberts to be a Supreme Court justice, and this pick was met with universal acclaim among conservatives, sensible people espied a pattern here Roberts would be a conservative Supreme Court justice. Others, however, saw a more subtle pattern. An unsigned September 26, 2005 New Republic editorial argued:
If Roberts seemed reassuring, he did not seem dazzling. He appears to be a decent man with the soul of an attorney. He is a man of the establishment, smart but not quite wise, more suave than strident, and utterly without a trace of the radical temperament, which will be salutary in these volatile times. But who will President Bush nominate next? The conservative bench is not exactly riddled with Roberts-like reasonableness. So it is too soon for liberals to be disarmed. Confirm Roberts, and prepare for Owen.
Jonathan Chait, writing in the October 24, 2005 issue about Bush's betrayals of social conservatives argued:
Bush's betrayal of the social conservative cause did not begin with Miers. His previous high court appointment, John Roberts, ought to have been taken as such. Bush all but explicitly promised to nominate justices like Clarence Thomas or Antonin Scalia, but Roberts is not in that mold. He has not displayed a passion for overturning precedents that enrage the right, and he has disavowed the tendency, favored by conservatives like Thomas, to use the Court to smother liberal legislation.
In the September 19, 2005 issue of the magazine, legal affairs editor Jeffrey Rosen argued that:
The truth is that Roberts's nomination as chief justice was a peace offering from Bush to Democrats and a gift to principled liberal and conservative defenders of judicial restraint. Rather than listening to the siren song of ideological interest groups who are urging them to cast a symbolic but futile vote of opposition, Democrats should instead vote to confirm Roberts as chief justice with gratitude and relief.
At any rate, Roberts is on the bench now and, exactly as one would have expected, he's a party line vote for the Court's conservative wing. The new issue of The New Republic even has an unsigned editorial denouncing his ruling in the school desegregation case. And Jeffrey Rosen, of course, has a long article
Breyer's cautious hope that the Court might become less polarized in the future, combined with disappointment at the polarization of the present, seems like the right attitude. It is a far more productive model for liberals than self-pity or shock about the unsurprising fact that, now that Alito has replaced O'Connor, the Court has moved right. For example, Emily Bazelon of Slate has demanded that liberals and moderates who supported Roberts as a potential unifier (including me) recant. This is premature. Bush won the 2004 election, and the opportunity to replace O'Connor with Alito ensured that he would change the direction of the Court. Those of us who supported Roberts never denied his conservatism.
But, look, neither I nor Bazelon nor anyone else dredging this up are exhibiting "self-pity or shock." It's what we expected. Rosen now wants us to believe that he was making some kind of point about political realism ("The question was: Who among the candidates President Bush was plausibly inclined to appoint as chief justice would be most likely to avoid the radicalism of Scalia and Thomas and try to unify the Court?") but that's not what was going on. People were writing, in the face of the evidence, that Roberts marked a clear break with Scalia. And we're seeing that he unquestionably is a break in prose style but he makes the same rulings.
And, look, people make predictions that go wrong. After Howard Dean secured the endorsements of Al Gore, SEIU, and AFSCME I was quite certain he was going to win the Democratic presidential nomination. These things happen. But they should be admitted; that's how one learns.