Saturday, July 07, 2012

Right-Wing Bullying of Justice Roberts

Randy Barnett, inventor of the "activity/inactivity" distinction takes us back to the days before the Supreme Court decided the ACA case, and quotes himself approvingly. You see, after reading those great legal scholars, Jennifer Rubin and Kathleen Parker, it occurred to Barnett that if Roberts did anything other than overturn the ACA his reputation would be forever stained:
Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure. As with Justice Owen Roberts’ vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert’s decision reflected political considerations rather than his considered legal judgment in a close case. And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.
Secret, that is, if we ignore the leaking from somewhere in the ranks of the dissenters, meant to embarrass Justice Roberts.

I've already suggested the first question raised by Barnett's brand of character assassination: None of this matters unless you believe Roberts is the sort of person who will bend to political pressure. If he will not, the story is over before it began - before the political right, through the pens of people like Kathleen Parker and Jennifer Rubin, implied that any vote except reversal would forever tar Roberts' reputation. If he is, then it's a distinction without a difference - whatever his vote, whether or not he had a change of heart somewhere along the way, people on the right perceived Roberts as being pliant to political pressure, their ultimate disappointment being that for some reason he bent the wrong way.

But more than that, when Barnett speculates about pressure on Roberts from "President Obama, Senator Leahy, and pundits like Jeff Rosen", exactly what form does he imagine that "pressure" could take? Exactly why is it that he believes Roberts would care what President Obama thought of an issue, let alone respond to "pressure" from the President? Of all the nonsensical right-wing conspiracy theories we've endured over the past few decades, the idea that the President has the power to cow the life tenured Chief Justice of the Supreme Court is right up there with the best of 'em.

It's even harder to imagine what Senator Leahy might have done that would cause Roberts to feel any amount of pressure. (Massage his shoulders?) Jeffrey Rosen? Does Barnett imagine that Rosen teaches at Hogwarts instead of George Washington University and somehow got his hands on the Elder wand? Rosen himself addresses the absurdity of the argument:
The idea that I was trying to “intimidate” or “bend” the Chief Justice came as a surprise to me. The justices have already voted in the health care case and are hardly influenced, in any event, by legal punditry. On the contrary, I suggested that this is a moment of truth for Chief Justice Roberts because I’ve been a staunch supporter of the vision of bipartisanship that he articulated when he became Chief Justice, and have continued to defend him during the past six years when others have denounced him for failing to live up to the standards he set for himself.
Yeah, but what do facts have to do with an otherwise good conspiracy theory?

So far we seem to be dealing with the following:
  1. Somebody leaked to the right-wing media that Roberts might vote to uphold the ACA.

  2. A number of right-wing political columnists, largely of the hack variety, started to write editorials claiming that Roberts was coming under pressure from the political left, and how atrocious that was.

  3. No evidence was ever produced of any form of actual pressure on Roberts from the political left, let alone of why he would have been receptive or responsive to any such pressure.

  4. Roberts ultimately voted to uphold the ACA.

  5. Many on the political right has since engaged in a relentless attack on Roberts.

Sorry, Randy, but this whole thing appears to be on the political right. I don't know if you thought Roberts was pliant to right-wing pressure and would always vote the way you wanted on important cases, but if you did not it's difficult to believe you would continue to push this issue. The only evidence of pressure on Roberts, implied threats against his reputation (as opposed to mere observations of how history might treat his decision) have come from the political right. Since the decision came down, the only efforts to trash his reputation have come from the political right.

So far, I see no reason to believe that Roberts cares about all of the right-wing furor, or the implication that he can expect this type of personal attack every time he rules the "wrong way". After all, he has never shown even the slightest concern about opprobrium from the political left resulting from any of his past decisions. Do those on the political right who are still pushing this line of attack believe otherwise? Are the attacks a form of prolonged venting of misdirected anger? Of disappointment that he's a mindful as opposed to mindless partisan? Are they hoping to make Roberts or other justices more responsive to their pressure in the future?

Really, why do these attacks keep on coming?

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