Wednesday, July 04, 2012

Justice Roberts, Institutional Integrity and the Lesser of Two Evils

As many on the political right continue their attempt to vilify Justice Roberts, one argument that is repeatedly raised is that Roberts somehow failed in his duty by choosing to uphold a law he believed to be unconstitutional. It is difficult to believe that people who advance that argument have read the court's opinion or have considered the issues; but I guess it's easier to speculate based on gossip than to think things through.

I've touched on this before, but let's make it simple: Imagine that you're a Supreme Court justice, presented with a law that you believe to be unconstitutional in part under a Commerce Clause analysis, but on the whole to be perfectly constitutional and non-controversial. You have four colleagues who take the position that the entire law is constitutional. You have another four colleagues who take the position that although your analysis is correct, the entire law must be overturned because... they say so.

Even without considering the novelty of the legal theory that is being used to attack the law - a less than two year old theory, minted by a right-wing law professor with the specific goal of attacking the specific law under discussion, and which is exceptionally unlikely to be relevant to any court decisions during your lifetime, or perhaps for the remaining history of the nation - the conundrum is clear: You are but one vote. Whichever side you join, by your analysis the outcome will be less than optimal - either the entire law us upheld or the entire law fails.

Do you stroke your chin and ask yourself, "Should I find a way to uphold a law I believe is (in part) unconstitutional, in order to preserve the integrity of the court," or do you instead ask yourself, "As part of my general duty to my office and the nation, do I pick the most judicially conservative outcome?" Roberts past votes suggest that he is not reticent about overturning precedents or invalidating laws he views as unconstitutional, no matter what controversy might result.

Let's now assume that you can find a way to join with the dissenters in their reasoning as to why portions of the law are unconstitutional, but then fall back on a somewhat strained, alternative theory pursuant to which the provision can be sustained within the context of established constitutional law. On the other hand, you can find no constitutional basis for the excesses of he dissenters - you see them as engaging in unbridled activism, reaching far beyond what the law and constitution dictate in order to advance a political agenda. In such a context your decision to take the former path is not premises upon fear that joining the dissenters will result in attacks on your reputation or the Court's - it will be your concern that you would deserve that treatment and that your dereliction of duty would be harmful to the court.

It now appears that the leaks about Roberts potentially upholding the law started at least a month before the decision was issued. In that context absurd, right-wing attacks on the left as trying to pressure Roberts may well have been in response to those leaks. You don't have to pay much attention to the Court to know that it has been dealing the political left defeat after defeat for many decades. Further, the notion that Roberts would gain any credibiity with the left that would overcome existing skepticism based upon his established track record, let alone credibility that won't disappear the moment he joins with the dissenters to decide, for example, an issue that's not properly before the court, to order an issue rebriefed and reargued so he can decide a different issue, or endorses new constitutional theories that are not actually premised on anything you can find in the Constitution.

You want vilification? Mark Thiessen proudly engages in right-wing vilification, attacking every Supreme Court appointee from the past thirty years except for Thomas, Scalia and Alito. If you think that's based on anything more profound that Thiessen's personal political agenda, it's not because you're informed. Even in the context of the ACA decision, and Kennedy's attempt to hold the entire Act unconstitutional, Thiessen is tossing fuel on a pyre with Kennedy's name on it.

There's no harm to Roberts in upsetting the "left" - the angrier he makes the left, the more of a hero he becomes to certain, presently dominant factions on the right. The articles accusing "liberals" of trying to pressure him seem, in retrospect, to have been a preemptive strike against Roberts - a warning that if he did not strike down the entire law, he would be vilified as being weak, and of caving in to pressure from the left.

And, surprise, that's exactly what is happening.

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