[Update: please see this follow-up item too.] If People magazine were based in D.C., instead of their Sexiest Man Alive specials they might run Most Cynical Person Alive contests. Obviously there are lots of candidates, but at this moment you would have to give the nod to John Roberts.
Let us travel back in time all the way to the summer of 2005. Take literally one minute to listen to these famous words from earnest young appeals-court judge John Roberts:
Humility. Modesty. Restraint. Deference to precedent. "We're just calling balls and strikes."
That guy sounded so great. Really, watch this minute-long video and think what it would be like to have a person like that on the bench.
Instead we have a chief justice who:
- in the "Obamacare" ruling two years ago, apparently decided that the institutional risk to the Court of blatantly coming across as just another branch of party politics outweighed the objections implicit in his prior rulings to the healthcare plan. So he found a way not to overturn the main legislative accomplishment of a president's first term, with all the hubbub that would ensue. As it happens, I was glad that the politics added up that way for him. But ...
- in this week's McCutcheon ruling, following Citizens United, he made up out of nowhere his own interpretation of how electoral politics and favor-trading works*—trumping that of Congress, composed 100 percent of elected members. Plus he invented his own post-Founders, no-input-from-Congress, precedent-be-damned theory of what "corruption" means. As it happens, I disagree with the results of this one. But the main point is that in their activist political sensibility neither this judgment nor the Obamacare one had the slightest connection to the person who so self-effacingly presented himself for confirmation nine years ago.
[* This interpretation, from the opinion:
[T]he only type of corruption Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.
See if anyone who has worked in politics recognizes that bright-line definition of the role of money in affecting politicians' behavior. The elected politicians who passed the campaign-finance laws didn't understand it that way. Then watch that video again. About judicial "modesty."]
Alito, Thomas, Scalia—not cynical. We know the deal with them. Kennedy—permanently enjoying his status as the man whose deliberations constitute the tie-breaking vote.
Roberts was the one who came in talking in such forelock-tugging terms about restraint and precedent, balls and strikes.
Nearly a decade in, his record is that of one more politician. But—unlike James Byrnes, Fred Vinson, Hugo Black, Earl Warren, and Sandra Day O'Connor—one who didn't have to bother getting the public's votes.
For later discussion: Depending on actuarial trends, and the outcome of the next presidential election, whether Ruth Bader Ginsburg and perhaps Stephen Breyer will eventually be seen as having put personal over national interest.
Life tenure for any public post is bad public policy. Individual justices can't do anything about that—though, who knows, John Roberts might try. They can do something about how long each of them decides to stay. Earl Warren left the Court at age 78, Potter Stewart at 66, Byron White at 76, Sandra Day O'Connor at 76, David Souter at 70. Any of us would like to keep doing satisfying work, and being important, as long as possible. I am sure Bill Clinton still rues the passage of the 22nd Amendment. But only nine of us, in a nation of 300-plus million, occupy positions with such decades-long effect on everyone else, and subject to such vagaries of national politics, as those on the Supreme Court.
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