John Roberts’s Betrayal

The "stealth strategy" for the court has failed -- try winning elections instead.

By W. JAMES ANTLE III

The Supreme Court was poised to deliver conservatives a major victory by overturning a hated liberal policy with little basis in the Constitution. A majority of the justices had been appointed by Republican presidents. Some of them were so conservative that Senate Democrats had attempted to prevent their confirmation.

Yet when the much anticipated ruling was finally handed down, the liberal policy was upheld with fairly minor caveats. A Republican-appointed justice unexpectedly voted with the liberal bloc. Instead of a victory, conservatives feared they had endured a permanent defeat on an important issue, and in an election year to boot.

While this certainly describes the past day’s events, it was also true 20 years ago. When the Senate narrowly confirmed Clarence Thomas, liberals feared he would be the deciding vote against Roe v. Wade. Well, Thomas did rule that Roe was wrongly decided at his first opportunity. But in 1992’s Planned Parenthood v. Casey, a 5-4 majority affirmed the core holding of the infamous abortion decision.

Anthony Kennedy, a Reagan appointee, saved Roe with a pivotal flip-flop and ended up writing an opinion as filled with liberal clichés as any amicus brief filed by a pointy-headed lefty law professor. Sandra Day O’Connor, also a Reagan pick, was another of three Republicans to join the plurality opinion. Harry Blackmun, a Nixon appointee, gave us Roe in the first place. Earl Warren, William Brennan, John Paul Stevens, David Souter—some of the most liberal justices of the postwar era were actually named by Republican presidents.

It’s too early to include John Roberts in that sad pantheon of Republican judicial failures. The chief justice has generally been the conservative jurist his supporters had hoped he would be, and a conservative conviction—a belief in judicial restraint—likely factored into his opinion in National Federation of Independent Business v. Sebelius. But Roberts’s untimely defection was in many respects a bigger blow to conservative legal circles than Kennedy’s two decades ago.

When Kennedy was nominated to the High Court, he was Reagan’s third choice. The Democratic-controlled Senate rejected Robert Bork as too conservative. Douglas Ginsburg had to withdraw amidst allegations that he had smoked marijuana. By this time Reagan was getting desperate to fill the seat and he turned to someone with a shorter paper trail of controversial legal writings. Souter was a similar “stealth” appointee.

The stealth strategy was good for getting Republican nominees confirmed, but bad for the conservative project of changing the composition of the courts. If Kennedy was a disappointment, Souter was an unmitigated disaster. Reagan may have gotten assurances from Kennedy’s priest that his nominee was pro-life; John Sununu vouched for Souter. But Kennedy was at best a swing vote and Souter became a full-time member of the liberal bloc.

Thanks to organizations like the Federalist Society, conservative legal networks were growing. Young libertarian and conservative lawyers had gained valuable experience in the Reagan and first Bush administrations. There were now clear markers to identify conservative legal talent that were more subtle than Bork’s abrasive public polemics. Absent such markers, there was no reason for conservatives to support a particular judicial nominee—and increasingly, they didn’t. When rumors circulated that George W. Bush intended to nominate Alberto Gonzales to the Supreme Court, conservatives pushed back and ultimately got Roberts. When Bush actually did nominate Harriet Miers, the right went into open revolt and got Samuel Alito.

Nobody embodied this new, improved judicial nomination strategy more than Roberts. He was widely known as a conservative in personal and professional circles, but had a sparse enough track record on substantive issues to plausibly keep Senate Democrats from pinning him down on future high-profile cases. His credentials were impeccable, so exactly half the Democratic conference felt they had no choice but to vote in favor of his confirmation. The other half, including then-Senator Obama, saw the same smoke signals the Federalist Society did and voted no.

Obama probably feels a bit guilty about that vote now. Roberts single-handedly rescued Obamacare’s individual mandate, despite agreeing with a set of constitutional arguments advanced principally by libertarian legal theorist Randy Barnett that would have allowed the mandate to be overturned without departing from generations of commerce-clause precedent. Four other Republican-appointed justices—including Kennedy—were prepared to strike down the whole healthcare law in a toughly worded conservative decision.

All they needed was Roberts’s vote. They didn’t get it. Instead of voting with Alito, Thomas, and Antonin Scalia, Roberts effectively sided with Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg. To be sure, he limited the damage the liberals would have done in turning the commerce clause into a general federal police power. But like Kennedy in Casey, he turned what could have been a 5-4 conservative triumph into a defeat.

Conservatives are still searching for silver linings, and perhaps there will be some. By vindicating the individual mandate as a tax, the Roberts decision makes it vulnerable to repeal through the filibuster-proof reconciliation process (though Democrats will surely return to text of the statute and insist the mandate is a fine). Politically, he has established Obama as a tax-hiker, with the Congressional Budget Office estimating that 75 percent of those subject to this tax earn less than $250,000 a year.

Casey had its silver linings too. The decision paradoxically ended up strengthening pro-lifers during the 1990s by giving them the flexibility to change the law in areas where the public agreed with them (such as parental notification for minors seeking abortions) while keeping their more sweeping goals constitutionally off-limits.

Perhaps that should be the lesson taken from Roberts as well. Like the pro-life movement, those who wish to restore constitutionally limited government can only expect so much from the courts, no matter what nomination strategy Republican presidents pursue. Making public arguments, winning elections, and passing constitutionally sound legislation is at least as important as trying to get five unpredictable justices. If Republicans mean what they say about Obamacare repeal, they must demonstrate it by their actions. They can no longer hide behind John Roberts’s robe.