As Chief Justice John Roberts receives end-of-year accolades for not striking down health care reform, The Wall Street Journal is mocking this "strange new respect" on its editorial page. But the WSJ's criticism is a thin veil for its clear preference that Roberts return to his conservative ideology, while failing to acknowledge Roberts' record as a clear conservative on issues like corporate power and civil rights.
The WSJ has already called Roberts' refusal to join his conservative colleagues on the Court and declare the Affordable Care Act unconstitutional "misbegotten." It is no surprise that a November 20 WSJ editorial treated with disdain the praise for Roberts's late switch, mocking his place on Atlantic Monthly's list of "Brave Thinkers" and being named one of Esquire's "Americans of the Year" along with actress Lena Dunham. From the editorial:
Chief Justice Roberts shares the Esquire honor with Lena Dunham, the star of an Obama campaign ad and the creator and star of the HBO series about 20-something sexual angst called "Girls."
She and the Chief Justice also make the Atlantic Monthly's list of "Brave Thinkers" of 2012, by which they mean thinkers who agree with the Atlantic's liberal editors. Ms. Dunham is praised for taking "the soft glow off the 'chick flick,'" for instance when her character acts "like an underage street hooker to turn her boyfriend on," while the Chief Justice gets credit for "maintaining the Court's legitimacy" with a ruling "both brave and shrewd." President Obama probably has Time's "Person of the Year" nailed down, but expect the Chief to finish a close second.
Such is the strange new respect a conservative receives for sustaining liberal priorities. Our own view is less effusive, and to expiate his ObamaCare legal sins, a fair punishment would be that he hire Ms. Dunham as a clerk.
Yet Roberts' conservative bona fides are well established, which makes the editorial seem like an exercise in "ref-working," essentially haranguing the Chief Justice to ensure future conservative behavior. In Roberts' case, this would not be a stretch. On issues of corporate power, the Roberts Court is unprecedented in its well-reported conservatism and has given the WSJ much to celebrate.
Similarly, Roberts' record on civil rights is sufficiently right-wing. With cases addressing affirmative action, voting rights, and marriage equality in the pipeline, the current docket gives him ample opportunity to return to the conservative fold. Excepting same-sex marriage (which has yet to be accepted for review), Roberts' positions on the other two issues - presented in Fisher v. University of Texas and Shelby County v. Holder - clearly parallel those of the WSJ.
The WSJ has characterized precedent affirming the constitutionality of race-conscious admissions policies in school desegregation efforts a "large legal mistake," and has called enforcement of the Voting Rights Act the "grossest kind of racial politics." The editorial board appears to have an ally in Roberts, who has already recorded his opposition to both affirmative action and the Voting Rights Act as Chief Justice. As Supreme Court expert Joan Biskupic has reported:
[T]he kinds of social policy issues that play to Roberts' true conservatism, such as affirmative action and other race-based remedies are on the agenda for the term that starts in October.
From his early days in the Reagan administration, Roberts has sought to roll back the government's use of racial remedies.[As Chief Justice, in] a 2006 case involving the drawing of "majority minority" voting districts to enhance the political power of blacks and Latinos, Roberts referred to "this sordid business (of) divvying us up by race." The following year, in a case involving school integration plans, he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
On marriage equality, Roberts' position is more unpredictable, as he "has not yet voted in a major gay rights case." The WSJ, on the other hand, has already preemptively declared as "activist" any Court decision finding unequal restrictions on same-sex marriage unconstitutional. But both liberal and conservative reporting has questioned whether Roberts would join the WSJ's aversion to a constitutional right to marriage for all, irrespective of sexual orientation. Perhaps this is where the WSJ's pressure is most directed, out of fear that Roberts does not want to be on the wrong side of history.
Ultimately, regardless of the reasons behind the WSJ's attempt to embarrass the Chief Justice of the Supreme Court, it might consider the reflections of conservative federal Judge Richard Posner on the "serious mistake" of right-wing media attacks against Roberts. From an interview with NPR:
"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."