Chief Justice John Roberts enjoyed something of a reprieve from liberal attacks on his judicial temperament after he upheld Obamacare, but the honeymoon is drawing to a close.
National Journal Magazine’s July 28 cover labels Roberts “the revolutionary” to resurrect the argument that he and his fellow Republican appointees will not rest until they push the Supreme Court so far to the right as to endanger the New Deal and Roe vs. Wade.
“[T]he steady churn in Washington politics has produced a Court that, for the first time in modern history, is cleaved into distinct warring camps,” James Oliphant writes in the magazine. “Republican presidents appointed Roberts and the four conservatives; Democrats selected Ginsburg and her three liberal allies. The judicial vetting process produces fewer and fewer wildcards; fewer fence-straddlers; fewer Byron Whites, Lewis Powells, O’Connors, and Kennedys.”
This paragraph contains at least one glaring contradiction. “The four conservatives” that Oliphant dismisses as a mere “warring camp” includes Justice Anthony Kennedy, whom he offers as a principled, politically moderate justice two sentences later.
Oliphant then quotes a legal scholar to get at the real problem. “What’s striking now, there is no Republican appointee on the Court who is a Democrat,” NYU’s Richard Epstein (an opponent of Obamacare) says in the story. Oliphant seems less troubled by the dearth of Democratic appointees who appear to be Republican — perhaps because he dislikes Roberts’ Obamacare ruling insofar as it reflects a “view that puts strict limits on the federal power, one where the Constitution protects economic liberty as a civil right, and one that, in a sense, flips the calendar back to the Gilded age.”
For his part, Oliphant appears determined to flip the calendar back to the pre-Obamacare ruling age — when liberals attacked Roberts as a conservative ideologue and he appeared (the appearance is not necessarily correct) to vote with the liberals in order to weaken that charge.