Conservative pundit Marc A. Thiessen writes in the Washington Post that Chief Justice John Roberts’ health care ruling is just the latest surprise from Supreme Court justices nominated by Republican presidents. Thiessen, a former George W. Bush speechwriter, cites various “liberal” rulings by Roberts, Justice Anthony Kennedy and former Justices David Souter and Sandra Day O’Connor: “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.”
Excuse me. Can he spell S-c-a-l-i-a?
Thiessen is saying exactly what one would expect a conservative columnist to say about the judiciary, especially when a decision has gone against them. The right wing has long been on a mission to discredit and destroy the role of the courts as the check and balance the Constitution intends them to be.
At the same time, they often hypocritically propose that the solution is to make the courts even more political by electing judges rather than appointing them.
Sen. Jeff Sessions summed up this point of view, “This ‘Washington-knows-best’ mentality is evident in all branches of government, but is especially troublesome in the judiciary, where unelected judges have twisted the words of our Constitution to advance their own political, economic, and social agendas.”
That conservative drumbeat has convinced many voters that the Court has become increasingly political. Recent polls show that 2/3 of Americans think politics played too great a role in the Supreme Court’s health care ruling.
And indeed politics probably did play a role, as they always have. The Court didn’t expand civil rights to African Americans until it was clear that the American people were becoming more open to it. And at the time (1954) the Court decided Brown v Board of Education declaring that school segregation unconstitutional, conservatives made the same case against the judiciary–saying it was too “political.” They even tried to impeach Chief Justice Earl Warren.
The fact is those “liberal” justices are actually the most “conservative” in the sense of applying the Constitution’s basic premise that liberty and justice applies to everyone, regardless of where we live, or what color or gender we might be.
And Theissen and his conservative buddies ought to be rejoicing that they held four votes against the Affordable Care Act while their usual fifth, Chief Justice Roberts, laid the groundwork to roll back the Constitution’s Commerce Clause and further lean toward states rights in their jurisprudence.
So which side should be more concerned about the Court’s direction after all?