Who You Calling a Hypocrite?

Eric argues that Dahlia’s (and others’) accusations of Supreme Court Justice hypocrisy is misplaced, because it has been other Republicans who have spent so many years championing textualism, originalism, judicial modesty and minimalist decisionmaking, respect for democratic decisionmaking, deference to state and local governments, etc., and who have so long decried “activiism,” “living constitutionalism,” judging-as-policymaking, etc.  The Justices themselves – not so much, or so Eric implies.

If Harvie Wilkinson and his ilk were the Justices, perhaps Eric would be onto something here.  Or, if Eric himself (or that other Posner ) were on the bench. (To his credit, Judge Wilkinson has recently published essays trying to defend conservative, Rehnquist-esque “activism,” and distinguishing it from the presumably illegitimate brand wielded by the Warren Court.  I fundamentally disagree with Wilkinson’s arguments and purported distinctions, but at least he has been fairly forthright about what is going on and the need for conservative jurists to justify their activitst decisionmaking after many years of activism-bashing.) 

But those aren’t the Justices who have been appointed and confirmed.

Bill Marshall, among others, has done a great job in several settings, such as this , marshaling the hypocrisy uh, inconsistencies of the current Republican majority on the Court, most or all of whom have traded considerably (especially in their confirmation hearings) on the notion that their role is strictly to “interpret law, rather than make it,” or that they scrupulously honor legislative/framers’ intent, or respect federalism, or interpret-not-legislate, etc.

Let me offer one other, more recent example, one that’s (literally) close to home.  A couple of weeks ago, the new Chief Justice was generously met with students at my local high school.   He described himself as part of a “passive” court that simply and impartially adjudicates the cases that come itsway.

“I don’t have an agenda,” Roberts told the students. “If I did, it wouldn’t be something I could implement.”

He also expressed his desire (similar to his remarks to Jeff Rosen and Jan Greenberg) to be a conciliator, his hope “that the court decide cases narrowly in hopes ofachieving unanimous or 8 to 1 decisions.”

“Robertsreturned often to the theme of an independent judiciary, saying judgesmust have leeway to make unpopular decisions based on the dictates ofthe law and Constitution. He said that having a ‘judicial philosophy’is not as important as deciding individual cases based on the law, butsaid judges should never think they hold the solutions to politicalproblems.”

Now, this should all sound very familiar.  How many times at his confirmation hearing did Roberts insist that he would not “legislate from the bench,” that his job was “merely” to “call balls and strikes,” etc.?

And yet, let’s be honest:  John Roberts has wasted no time at all in his first three Terms on the Court proving that his decisionmaking is governed not by textualism, or originalism, or eschewing “activism,” or promoting conciliation and unanimity and “minimalist” decisionmaking, or paying deference to the enactments of democratically elected legislatures, or respecting state and local prerogatives, or adhering to stare decisis , etc.  Rather, the Chief’s votes and opinions, in almost every seriously contested case, reflect a results-driven, fairly standard conservative philosophy.  (I don’t think I need to delve into the details here, because Eric and other fair-minded observers will agree.  I can’t much improve on Eric here; when he writes the following, I think it describes Chief Justice Roberts to a tee:

Presidents want to appoint Supreme Court justices who will decide casesconsistently with the presidents’ political agendas, but they can’tvery well ask their appointees to do politics.  The solution is to findand appoint people who sincerely hold judicial philosophies that arelikely to generate the political outcomes that the president values. It isn’t fair to call these appointees hypocrites; they are sincere (asfar as we can tell).  Nor does it seem fair to call the presidentshypocrites, though they are less than straightforward when they claimthat they care about the judicial philosophies rather than the politicsof appointees (they care about the former because they care about thelatter)… .  [The Court] holds itself out as an impartial institution that decides the lawonly, but makes decisions that a twelve-year old could tie to thepolitics of its members–as Heller seems to make (or will make)painfully clear.)

Not that there’s anything (necessarily) wrong with that!  It’s not unprincipled; it’s the application of a distinct method of “construing” the Constitution and statutes that happens to be compatible with the jurist’s philosophical and ideological aspirations or commitments – let’s call them “jurisprudential views” – about government regulation; access to courts; church and state; affirmative action; presidential power; punitive damages (and other corporate interests); abortion; gun rights; student speech; criminals’ rights (note how in his dissent in Danforth a couple of weeks ago, there was no pretense of reliance on any constitutional or statutory provisions; I think the opinion can only be explained by a general distaste for reversals of criminal convictions (even where constitutional violations have occurred); etc.

Emily’s excellent piece at the end of last Term (when Roberts just happened to vote for the more “conservative” outcome in every one of the more than two-dozen 5-4 decisions, and ran roughshod over precedents such as Brown , Swann, Tinker , Flast , Stenberg , McConnell/Austin , etc., in the process) pretty much sums it up.   Indeed, if I’m not mistaken, Roberts has opted for the more conservative position in every one of the 5-4 and other seriously contested cases in his three Terms on the Court, with the singular, arguable exception of Jones v. Flowers in his first term (which involved due process in context of … property confiscation).  And I think you’d agree, Eric, that these votes cannot be explained by Roberts’s principled adherence to a jurisprudence of originalism, or “strict construction,” or judicial humility, or deference, or … any other nonsubstantive metric.

I think Roberts’s actions as Chief Justice are pretty much exactly what one should have expected from him, in light of his philosophy and background.  He has certain political commitments; he is very, very adept at tactics and at writing sophisticated opinions so as to further those commitments; and he is acting accordingly, at least in the mine run of cases.  Not hypocrisy?  Okay, I’ll go with Eric’s own characterization:  The Chief is very sincere about what he is doing, but “less than straightforward” when publicly describing how he goes about deciding cases.  Should we be troubled by such dissembling?  I don’t know.  But it is fairly common, and thus I don’t think it was unreasonable for Roberts to have portrayed himself as a “just the facts, calling balls and strikes” sort of jurist before the Senate (and the local high school), even though he knows full well he’s nothing of the sort.  There’s a certain level of hypocrisy lack of “straightforwardness” whenever any Justice speaks publicly of the “modest” judicial role; some judges are simply more audacious than others.

What’s irksome, therefore, is not so much the disjunction between what the Justices themselves say and do (although the self-righteousness of fair-weather “originalists” is a bit much), but instead the … what should we call it?  – hypocrisy of those on the right – at the National Review, the Volokh Conspiracy, speakers at the Federalist Society conventions – who both (sincerely) pronounce on the virtues of originalism/plain meaning/federalism/what-have-you, on the one hand, and shower unequivocal praise on the likes of Chief Justice Roberts, on the other.