On Anger, Cynicism, and Public Discussion

I have a several-day stretch ahead of being away from the Internet, but before I go I wanted to follow up on one point.

Some people liked, and some people very much did not like, an item I did late last night on Chief Justice John Roberts. It's almost always a mistake to let yourself sound angry, and I almost always regret doing so. Here's why I take this tone on this subject.

In the modern politics of judicial nominations, all candidates for life-tenure posts are forced to play dumb, or at least coy, in their confirmation hearings. That's the reality of life. And for great stretches of his hearings back in 2005, John Roberts handled questions in the required, unexceptionable way. "I don't like to deal with hypotheticals, Senator." "Senator, that's a question that might come before the Court for adjudication, and so ..." "Under the principle of stare decisis, Mr. Chairman..."

What candidates are not required to do is to present themselves as distinctive embodiments of a modest, "humble," precedent-revering, non-interventionist approach to the role of the courts. That is precisely what then-Judge John Roberts did so memorably in 2005. To check this for yourself, you can go back and look at the clip in the previous item (and below), or the whole C-SPAN archive of the hearings, or read his opening statement. That stance is completely at odds with the role Roberts has actually played as chief justice, and I am repeatedly struck by the contrast. It is very hard for me to find a non-cynical interpretation of the growing gap between the way he presented himself then and the way he writes decisions now.

Also: In that item, I should have mentioned the Shelby County decision as the most radical illustration of Roberts's willingness to overturn precedent, congressional will, and any conceivable notion of judicial "restraint." Andrew Cohen's assessment of that ruling was very angry-sounding, and for good reason. Roberts's opinion in this case bore directly on these questions of judicial humility and modesty. An elected Congress had repeatedly decided that Voting Rights Act protection remained necessary in parts of the South. Roberts said, in effect, No, you're wrong—and this judgment is up to us, so your laws don't apply.

You want to read something really angry about judicial overreach, read Ruth Bader Ginsburg's Shelby County dissent.

I was imprecise in suggesting that Roberts had laid out a record of opinions specifically indicating that he would cast the deciding vote against Obamacare. The point I was trying to make is that Roberts's deciding vote the other way, to avoid dismantling the Affordable Care Act, seemed more easily explicable as a political act—in the institutional interests of the Court, to keep it from seemingly nakedly partisan in the tradition of Bush-v.-Gore—than as the natural outcome of his judicial logic. That seemed to be how most legal analysts parsed it, whether they agreed with the outcome or not.

It rarely advances an argument to seem personally het-up about it, so here is a calmer version of my point. The man who, at age 50, presented himself for lifetime tenure as chief justice said that he conceived of his role as a minimalist "balls and strikes" umpire. No one who has observed him in office could plausibly describe him that way. He has been as precedent-disregarding as they come. So was he naive in saying what he did nine years ago? Or was he cynical? To me those seem to be the options.

Extra reading: Dahlia Lithwick, Emily Bazelon, Jeffrey Toobin, Lawrence Lessig. 

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