(/sites/default/files/uploads/2012/06/120626_john_roberts1_ap_605.gif)“Pop the champagne corks, conservatives,” Powerline’s John Hinderaker reacted upon George W. Bush’s selection of John Roberts to succeed a retiring Sandra Day O’Connor. “Roberts is a fantastic choice, a brilliant and bulletproof conservative.” Paul Mirengoff, Hinderaker’s Powerline colleague, gushed: “I’m over the moon.” “BRAVO…an inspired choice,” opined Orin Kerr of the Volokh Conspiracy. Hugh Hewitt called Roberts a “home run for the president, the SCOTUS, and for the United States.”
But will you still love me tomorrow?
Chief Justice John Roberts became the first Republican to vote for the Patient Protection and Affordable Care Act yesterday. Ultimately, the George W. Bush-appointee’s imprimatur was the only Republican vote the administration needed. Democrats pushed the law. Only a Republican on a court in which GOP appointees constitute a majority could affirm its constitutionality. The vote of the chief justice tipped the balance 5-4 in favor of the president’s health reform.
The pattern of Republican-appointed jurists upholding constitutionally-questionable laws pushed by liberals is by now a familiar one.
Dwight Eisenhower made California Governor Earl Warren the chief justice of the U.S. Supreme Court. He wrote the 5-4 opinion invalidating the conviction of Ernesto Miranda, who confessed to kidnapping and raping a teenage girl, because the police hadn’t informed him of his legal rights. The demand that police serve as legal advisors to those they apprehend directly resulted in the release of numerous dangerous people, including a man who had stabbed his wife and five children to death. Miranda v. Arizona proved one in a line of cases in which the Warren Court weakened the criminal justice system.
Ike famously dubbed Warren “the biggest damn fool mistake I ever made.” Other Republicans would repeat rather than learn from the 34th president’s “damn fool mistake.”
Richard Nixon appointed Justice Harry Blackmun, who wrote the majority opinion in the Roe v. Wade case invalidating the abortion laws of every state. Gerald Ford nominated John Paul Stevens, who wrote the majority opinion in Kelo v. New London, which empowers governments to take private property for the benefit of private interests that supposedly better serve the public good. George H.W. Bush-appointee David Souter and Ronald Reagan-appointees Sandra Day O’Connor and Anthony Kennedy wrote the plurality decision upholding Roe v. Wade in Planned Parenthood v. Casey.
Conservatives did not learn from the mistakes of nominating Warren, Blackmun, Souter, etc. Why should anybody think they will learn from the John Roberts mistake?
It’s not as though anyone can predict with great precision how nominees will rule on cases years in the future. But reserving nominations for only those jurists who play their cards close to the vest ensures more unwelcome surprises. “Roberts is mostly a blank slate upon which conservatives have projected their hopes and desires and liberals their nightmares and worst-case-scenarios,” I wrote seven years ago. “John Roberts may become a hero in the eyes of conservatives, but there’s next to nothing in his short paper trail that would indicate so.
A surface interpretation of the decision sees it as an affirmation of this president’s chief domestic initiative. But deeper than that is what the decision says about Obama’s predecessor. George W. Bush vowed to rein in judicial activism. But a decision by the man he made chief justice rewrites the health care law’s individual mandate into a tax to make it kosher with the Constitution. The verdict on the law is also a verdict on two presidencies.
Thursday’s Supreme Court victory may yet be seen as a Pyrrhic one for this president. Voters angry over ObamaCare may take out their frustrations on Barack Obama come November. He seems to recognize this. “I didn’t do this because it was good politics,” the president said in reaction to the decision. “I did it because I thought it was good for the American people.”
Conservatives should keep this in mind the next time a Republican president has the chance to change the composition of the U.S. Supreme Court. The political pros and cons of a bruising confirmation battle should be of secondary concern to the impact that decades of a particular nominee sitting on the bench will have on the American people.
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