[S]ome liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?
[...] The liberal Washington lawyers who went out of their way to stick up for Roberts were the ones who knew him. [...] Douglas Kendal [said] "Roberts' combination of intellect, skill, and open-mindedness should temper, at least somewhat, anxiety about his nomination," he wrote in a Washington Post op-ed, "What Makes Roberts Different," shortly after the nomination. [... ] "John is conservative in his political beliefs," [Richard] Lazarus told CBS in the days leading up to the confirmation hearings. "He is somebody, though, who has not defined his life driven by his politics or driven by his ideology."
George Washington law professor Jeffrey Rosen [...] called "the claim that Roberts would move the Court to the right as chief justice … transparently unconvincing." Rosen even ventured that because Roberts "may turn out to be more concerned about judicial stability and humility" than Rehnquist or then-Justice Sandra Day O'Connor, "he might even move the Court to the left."
Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."
Since 2007, the Roberts Court has become even worse, and the chief justice is as bad as most of the extreme right wing of the court. (Of course, like Justice Kennedy, there is always a decision or two to point to (for Roberts it is his ACA decision—though I have problems with that formulation—and for Kennedy it is gay rights.)
Contrary to his image, President Obama has been quite vocal in his disagreements with the Supreme Court. Especially noteworthy was the president's call out of the court's Citizens United decision in his 2010 State of the Union Address. Of course that led to the infamous Alito moment you can enjoy below the fold:
And of course, contra Alito, it was true. Incredible amounts of corporate money have flooded into our political system since the Citizens United decision. Indeed, Bazelon's statement in 2007 seems very prescient after this week:
The reassurances to the left about Roberts' virtues look pretty empty this week. And just wait until Roberts becomes a court veteran. The longer he's there, the less relevant keeping or chucking past decisions will be, and the more he'll build, from case to case, on the opinions he has written himself. [Emphasis supplied.]That is precisely what Roberts did in gutting the Voting Rights Act this week, where in his opinion in Shelby County v. Holder (PDF), the precedent Roberts relies upon almost exclusively is his own 2009 opinion in NAMUDNO. When affirmative action comes before the court again, watch the citations to Fisher.
Might this be the moment that finally provides a deeper understanding and awakening in the country to just how extremist and radical the Robert Court is? Certainly on the court that may be happening. Justice Ginsburg's dissent is quite biting:
Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.I note the most disturbing lapses. First, by what right,given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the“equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.
[...] the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit—Shelby County, Alabama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.
[...] Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.
[...] Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision. [Emphasis supplied.]
The direct political impact of the Roberts Five's radical extreme overturning of one of the most admired and effective pieces of legislation in the history of the nation is patent. Already many of the covered jurisdictions are warming up their schemes to suppress minority voting, mostly through onerous voter ID laws.
The question is will the nation, especially minority voters, be "activated" as well. A big part of the question will be determined by how the Democratic Party explains what is at stake. Too often it has failed in this task.
And too often liberal pundits have failed to explain the extreme and radical nature of the project the Roberts Five are engaged in.
One of my sig lines back in the day was "the SCOTUS is extraordinary." Every year we find out again and again how extraordinary it is. Can the extreme and radical nature of the Roberts Five be properly conveyed by the Democratic Party and liberal and progressive commentators? Can the extreme and radical Roberts Five become a significant part of the political conversation? It needs to, not just for the politics but because the country needs to know what these five men are up to. And they must be stopped.