by Doctor Science
There's been a lot of ink, pixels, and electrons spilled this week over a CBS News report about Chief Justice Roberts switching his vote to uphold Obamacare. For me, the weirdest thing about this whole circus is that conservatives apparently think the article makes the four dissenting Justices look good, when -- to me -- the article shows them as petulant judicial activists too scared to engage with other people's opinions.
The article is by Jan Crawford, who the Washington Post's Charles Lane calls:
... a fine journalist whose good relationship with Justice Clarence Thomas and his wife, Tea Party booster and sometime Daily Caller correspondent Ginni Thomas, is widely known around the Supreme Court.Really? Because here's what Crawford writes:
Thomas comes off as a principled conservative in Crawford’s story, especially by comparison to the Chief Justice.
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.To me, this makes Justice Thomas look like an insecure *nut*, not a "principled conservative". Yet apparently Crawford is a friend of his, and he (or his wife) may even have been one of her sources for the story, so apparently this counts as praise in their world.
But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.
In case I'm not being clear: if you can't even listen to someone who might disagree with you, lest they influence your thinking, you're not being "principled", you're being cowardly -- you obviously don't think your ideas stand up to the challenge. This is aside from the fact that calling the NY Times "liberal" is laughable.
Justice Thomas' attitude sounds like a textbook case of epistemic closure:
One of the more striking features of the contemporary conservative movement is the extent to which it has been moving toward epistemic closure. Reality is defined by a multimedia array of interconnected and cross promoting conservative blogs, radio programs, magazines, and of course, Fox News. Whatever conflicts with that reality can be dismissed out of hand because it comes from the liberal media, and is therefore ipso facto not to be trusted. (How do you know they’re liberal? Well, they disagree with the conservative media!)[More on the topic and the debate about Sanchez' post here and here.]
Other things Crawford writes that are difficult for me to read as compliments, but supposedly are:
- "Roberts then withstood a month-long, desperate campaign to bring him back to his original position." "desperate" does not speak of weighty judicial reasoning
- "And so the conservatives handed him their own message which, as one justice put it, essentially translated into, 'You're on your own.'
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate." This makes it sound like a playground feud.
- "It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation." The fact that we aren't told either Roberts' explanation nor why the conservative thought it unsatisfactory makes the latter sound petulant, emotional, and uninterested in substance: "Yeah, I asked him, like, why'd you do that? And he said, like, a bunch of, y'know, *bull*. And I was, like, see if I'll sit next to *you* at lunch."
- "To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president' health care law unconstitutional." Crawford is *saying* that the conservatives wanted to be activist judges. Why aren't they miffed at her?
- "Moreover, there are passages in Roberts' opinion that are consistent with his views that unelected judges have assumed too much power over American life, and that courts generally should take a back seat to elected officials, who are closer to the people and can be voted out of office if the people don't like what they're doing." Again, I thought "principled conservatives" were against unelected judges extending their power, so this makes it sound like Roberts was being more fundamentally conservative than Scalia/Thomas/Alito/Kennedy.
- "But despite Roberts' strong language on the Commerce Clause, the conservatives would have none of it, the two sources said, even though there was no significant difference in their reasoning on that issue. ... The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him." Again, they sound petulant and childish.
So in sum, though conservatives have gotten all upset about this article, it's because it reveals Roberts changed his mind, the horror! -- not because it makes the conservative Justices, including the writer's personal friends, look like petulant children with their hands over their ears, going LA LA LA CAN'T HEAR YOU. Nor because it (IMHO) makes Roberts look thoughtful, concerned about the institution of the Court, and opposed to judicial activism -- in other words, what we used to call conservative.