thoughts from an empty head: Chief Justice Roberts and Political Orthodoxy

It’s not an exaggeration to suggest that the Supreme Court holding that the ACA is in fact constitutional (albeit on novel and narrow grounds that no one expected to be used, i.e., the Congress’ power to levy taxes) represents the biggest blow to the current distillation of right-wing ideology that it’s had in some time and possibly ever. The blow was made even more psychologically damaging by the fact that it came at the hands of the previously doctrinally reliable Chief Justice John Roberts, who penned the opinion upholding the law, on which he was accompanied by the court’s four more left-leaning judges and none of the four right-leaning ones. Roberts, formerly one of the golden boys of the right-wing orthodoxy, has been pushed out of that position with all the force and rage that comes from, well, not being the performing monkey that the current crop of right-wing ideologues thought that they had installed into the Chief Justice position. Roberts, in short, went rogue, and that is unforgivable.

Let’s make no mistake about this: the reason that the ACA was driven to the Supreme Court with the alacrity that it was by the right wing was because at the end of the day it fully expected the court to strike it down. As much as right wing politicians like to mewl about activist, unelected judges when they don’t get their doctrinal way, they’ve also spend the last couple of decades doing everything they can to get as many of their doctrinal bedfellows into the judiciary as possible. Nowhere has this been more the case than the current Supreme Court, which some observers judge the most conservative Court since the 1930s.

But more than conservative, the Court is supposed to be reliable — that is, adhering to current right-wing orthodoxy regardless of that orthodoxy’s relation to classical conservative principles. When the ACA was marched into the Supreme Court, from the right wing point of view it was there to be killed; the legal reasoning of the killing was less important than the 5-4 vote the right wing fully expected it had to exercise its will.

Well, it got a 5-4 vote, all right. It even received what I would consider a classically conservative ruling — is there really an argument that the Congress does not have enumerated in its Constitutional rights and duties the ability to levy taxes? What it doesn’t have is a victory. And ultimately the reason that it does not have a victory is because the right wing forgot what many orthodoxies forget: That in the end, people aren’t machines that do what you want them do when you press the right button. They are human beings, and human beings have (or at the very least have the potential for) agency, i.e., they have their own brains, have their own agendas and can make up their own minds. Which in the end is what Roberts did.

And which, it should be noted, he is supposed to do, Constitutionally speaking. The Founding Fathers, in their wisdom, gave federal judges life tenure. One reason for that was to insulate these judges from the current fashions and passions of the political fray and to give them their own heads about things. Judges are not immune to politics, of course, especially if they want to move up and dream of a Senate confirmation hearing sometime in their future. But it’s also equally true that once you’ve had the confirmation hearing and passed it, you’re gone as far as you’re going to go. John Roberts is the Chief Justice of the Supreme Court of the United States. It’s a terminal position, employment-wise — which means there’s no one who has any lever they can wedge in to get him to move the way they want to. He’s on his own recognizance. He has his own head.

Former Bush speechwriter Marc Thiessen recently kvetched in the Washington Post, wondering why it is that Republicans are “so bad” at picking Supreme Court justices, i.e., why they drift from their expected positions and start voting in ways that are not doctrinally reliable. Leaving aside the fact that the right wing of the US has shifted itself politically to such an extent that even Ronald Reagan (the real one, not the icon) couldn’t pass its current sniff test, the answer is more correctly, why is Thiessen so oblivious that he doesn’t understand that the power of political orthodoxy is its ability to force its members to comply — and that the Supreme Court is designed to sever its members from such threats of force? That’s why they drift. And the more straight-jacketed your orthodoxy, the greater the chance of drift. There’s no doubt that currently the right wing is about as orthodoxically straight-jacketed as they come.

I don’t think there’s any question that Roberts is a conservative judge; a look at his track record and even at his ACA write-up makes this abundantly clear. I don’t think there’s any question that Roberts will continue to be a conservative judge. What the ACA ruling serves notice for, perhaps, is that Roberts is following his own conscience and reasoning regarding what it means to be conservative, rather than taking his cues from the the current right-wing orthodoxy. Ultimately, that’s what sending the right wing into their rage about Roberts: That now it’s possible he’s his own man, not theirs.