Justice Roberts, Apostate!

David Frum knows a little bit about apostasy. His abrupt termination by the AEI¹ was reportedly triggered by his "Waterloo" argument, that by choosing to fight healthcare reform rather than participate in the process the Republican Party missed the opportunity to potentially help craft a more conservative bill.

Since his termination, Frum has been attempting to reinvent himself as a different sort of Republican, a sensible Republican who longs for the good old days of bipartisanship (i.e., 5 Democrats joining a Republican bill) and who complains about partisanship, the unseemliness of right-wing radio hosts, and the like. His quest to reinvent himself has not found him a new home in the Republican Party, nor has his retreat from his own past excesses been forgotten by those who might be his allies but for his past attacks. But if Jeb Bush's apparent gamble on the Republican Party's return to moderation is credible, perhaps he'll seem like less of a Cassandra and more of an opinion leader.

Back in his AEI glory days, Frum appeared to be participating in what I jokingly suggested might be a contest between himself and two of his former Bush Administration speechwriting buddies, his ex-boss Michael Gerson and his fellow backbiter Marc Thiessen. The contest appeared to be, who could make the dumbest possible statement about an issue of public controversy and still be taken seriously. The AEI termination led to Frum's gradual, overall withdrawal from the contest - a choice he may regret, given that the apparent prize for the winner(s) is a sinecure on the Washington Post Op/Ed page.

I alluded to Gerson's commentary on the Supreme Court's decision upholding the ACA while poking fun at the ridiculous Peggy Noonan, but that wasn't entirely fair to Frum. Although he does see the Court's decision as contradicting the Republican Agenda, his criticism was directed not at Roberts but at the Republican Party. Once it was Waterloo, now it's a 100 Years War.

On the whole, Marc Thiessen is the clear contest winner - the guy whose arguments are usually devoid of fact or reason, with no apparent consequence to his standing as a conservative commentator. Michael Gerson's columns have gradually faded into mediocrity. It's if he can barely muster the energy to gather the kindling, leaving poor Marc not only to collect the firewood, but also to identify the heretics who must be burned.

When I saw Thiessen's piece today, titled Why is Fred Hiatt So Awful at Picking Op/Ed Columnists Why are Republicans so awful at picking Supreme Court justices, it seemed lucky for Frum that he had thrown in the towel. Thiessen lectures us that,

Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.

If you actually follow the court, you will recall Justice Stevens' observations that his "transformation" from "conservative" to "liberal" did not actually involve his changing any of his opinions - it resulted from the court's dramatic shift to the right. Reagan's policies and politics would be far too liberal for the modern Republican Party. He appointed his nominees before the individual health insurance mandate was created and advocated by conservatives and the Republican Party, so it shouldn't be particularly surprising that his nominees represented a different brand of conservatism.

Thiessen also forgets that the task of nominating candidates for the Supreme Court belongs to the President, not to the party. Prior to G.W.'s presidency it was difficult to imagine that the Republicans would turn on a president's nominee in the manner in which they turned on Harriet Miers. Thiessen complains that Supreme Court justices don't share his preferred political agenda, and aren't consistently trying to advance his preferred agenda through their service on the Court? Maybe that's because Presidents Reagan and George H.W. Bush didn't share Thiessen's agenda, and thus didn't apply his litmus tests when selecting candidates. Perhaps also, Supreme Court Justices don't see their job quite the same way Thiessen does.

And that's before we get to the silliness of Thiessen's suggestion that the justices appointed by Democratic Presidents always vote against Thiessen's agenda "on critical decisions". As they say, it all depends on whose ox is getting gored.

Thiessen prattles on with the notion that "Conservatives are pariahs if they vote against the left on certain issues. But if they cross over vote with the left, they are hailed as statesmen." Hardly. Kennedy, generally regarded as the "swing vote" of the current court, is not hailed as a statesman. He's often characterized as having a weak and inconsistent approach to the Constitution, and of tending to patronize women. Who does he imagine he's talking about? Rehnquist? Scalia? Thomas? Alito? Because one example from one case, with cherry-picked quotes from a handful of sources, does not constitute a pattern - even if we ignore the fact that "pre-emptive" attacks are irrelevant to his argument and that it's conservatives like himself who are engaged in the behavior he supposedly deplores.

Thiessen's on a roll,

Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy.

A statement that leaves me with the firm impression that Thiessen has never read a Supreme Court opinion - majority, concurring or dissent - by any of the Justices he's attacking. If you read a typical Scalia or Thomas opinion and are left scratching your head, "Is he a conservative? It's so... cryptic", all you've established is that you're a dolt.

Thiessen whines,

But legislate from the bench is exactly what Roberts did last week. The law’s proponents consistently rejected the notion that the individual mandate was a tax. But Roberts effectively redrafted the statute, making the mandate a tax in order to declare it constitutional....

That is the kind of sophistry we expect from liberals. The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did last week. He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.

Talk about turning history on its head. Two years ago when the bill passed, conservative commentators regarded it as all-but-certain to pass muster with the Supreme Court. Then, months later, a right-wing law professor invented the "activity/inactivity" distinction that became the centerpiece of the legal attack on the ACA. And it almost worked. As Thiessen knows, Roberts endorsed that newly fabricated "magic bullet" argument - the one that was supposed to take down the ACA (or at least its key elements.

Had the four dissenters joined Roberts in overturning only the mandate and the associated community rating / preexisting condition provisions of the ACA, I think Roberts would have joined with them and that hacks like Thiessen would be praising his brilliance. But Roberts had just one vote to cast. With four Justices voting to uphold the bulk of the ACA, four hungering to overturn the entire Act - including provisions that are already in effect and have absolutely no relation to the mandate - Roberts chose the more judicially conservative approach. Thiessen should perhaps address his anger at the dissenters who, as a result of their eagerness to throw the baby out with the bathwater, ended up preserving both.

No, there's no real intellectual satisfaction to "We'll call it a tax and, voila, constitutional," but that was the avenue that allowed Roberts to join with the dissenters on issues that a better legal analysis would have required him to reject. The better approach would have been either to apply a traditional Commerce Clause analysis, applying existing precedent and discussing the proposed "activity/inactivity" distinction within that framework. Although there's some debate over whether it constitutes dicta or holding, Roberts attempted to articulate a new framework - but in order to avoid a form of activism that would take center stage in Constitutional Law textbooks for decades to come, he found an alternative path to upholding the ACA.

Thiessen sees only two reasons why Roberts would have changed his vote, "[that] he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve". Thiessen apparently cannot contemplate the possibility that given a forced choice between (virtually) all or nothing, Roberts chose the conservative approach - eschewing the activism that hacks like Thiessen claim to detest but, as evidenced by his poisonous diatribe, actually desire. Thiessen falls victim to self-parody,

We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.

Which columnists do you suppose you're more likely to find at a Georgetown cocktail party - those of the New York Times, or those of the Washington Post? Which paper does Thiessen, who is explicitly trying to punish, diminish and marginalize Roberts for voting "the wrong way" on a case, work for, again? What's the point of Thiessen's vitriol, or of his long history of seeking out heretics and calling for their destruction, if not to influence them and others - to try to intimidate them into toeing the party line? And the legal academy? Which justices adhered to precedent and two centuries of Commerce Clause jurisprudence, again? And which glommed onto a less than two-year-old theory concocted by a law professor, then championed by others, as a means of defeating the ACA? Thiessen is entitled to his own opinion column, but not to his own facts.

I was going to declare Thiessen the hands-down winner, but before I had a chance to write anything Gerson came up with a late entry. Another "facts be damned" whine about how conservatives justicescare too much about the institution of the Court to simply aren't able to ram through the Republican agenda.

Perhaps channeling his inner David Brooks, king of the false dichotomy, Gerson pontificates that there are "two varieties of judicial conservatism — institutionalism and constitutionalism".

In [an institutionalist's] view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

[Constitutionalists focus] on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it.

So within the context of this decision, in which five Justices - the dissenters and Roberts - looked at the following Constitutional language:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

And concluded that the text includes an absolute prohibition on the regulation of what the Court determines to be the regulation of inactivity - imposing a penalty on a person who chooses not to engage in a specific form of commerce - no matter what the facts or how compelling the circumstances. The fundamental "reasoning" for the prohibition is that, although states have long imposed mandates without controversy or excess, to allow even the most modest of mandate in even the most compelling of circumstances would inevitably lead to the government forcing people to buy broccoli. That argument is neither textual nor logical.

Meanwhile it is possible to be a close adherent of the text of the Constitution while also believing that the Court needs to protect its credibility as an institution. Gerson defends the judicial activism of the justices he purports to be constitutionalists, suggesting that they're pushing back against "liberal activism", but that's a self-serving, political argument. In the present case, the concurring opinion represents both the better textual interpretation and (as Gerson concedes) the "institutional conservatism" that Gerson would have us believe is somehow solely the province of Roberts. (Sorry, Michael - Roberts has only one vote - he needed to join with four others for that vote to count for anything.)

Gerson shares, and perhaps parrots, Thiessen's complaint that Roberts turned to Congress's power to tax as his basis for upholding the law. He then presents an addle, social science argument that the mandate might work as a "mandate" but by revealing to people the supposed secret that they could actually choose not to buy insurance and pay a penalty, Roberts has made it more likely that people will regard their choice in economic terms and now be more likely to pick the penalty if they think they'll save money. Seriously? One hardly dares tell Gerson that such "reasoning" has no place in the constitutional analysis of a statute.

Gerson opened his column by casting aspersions on Earl Warren, and closes by cautioning Justice Roberts, in effect, that if he doesn't shape up and start doing what the Republican Party wants him to do, he can expect hacks like Gerson to argue that he's the "new Earl Warren".

On the whole, Gerson seems to be parroting arguments raised by others, perhaps including Thiessen, so I think Thiessen takes the round.
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1. For somebody who cherishes intellectual rigor and honest debate, being fired by the AEI would be a badge of honor... but I presuppose that such a person could get hired by the AEI.