The Grassley is Always Greener

IMG_1150What a difference a decade makes. It was not so long ago that a new era of conservative jurisprudence was supposedly underway, as President George W. Bush struck a fatal blow to judicial activists everywhere through his appointment of Judges John Roberts and Samuel Alito to the Supreme Court. Initially tapped to replace the swing justice Sandra Day O’Connor, Roberts in particular was supposed to provide the intellectual heft and unquestioned conservative credentials necessary to shift the nation’s legal landscape. Upon reappointing Roberts to serve as Chief Justice six weeks later following William Rehnquist’s death, President Bush proclaimed: “It is fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court and his complete devotion to the cause of justice.” What little paper trail that existed suggested that Roberts was reliably conservative. For the most part, Republicans were pleased.

Times have changed. Starting in 2012 (and beginning again in earnest in 2015), conservatives abandoned Roberts entirely. Once a staunch defender of the Chief Justice, Ted Cruz has denounced him. Donald Trump has excoriated Roberts on the campaign trail, saying that “Obamacare was dead, totally dead, then Roberts, in order to be popular in the Beltway, who knows, came in with a shocking decision,” while his campaign has gone so far as to argue that “Justice John Roberts’ so-called jurisprudence has done tremendous damage to America.” Even Jeb Bush claimed during his aborted presidential campaign that he, unlike his brother, would not have appointed Roberts because he lacked “a proven, extensive record.” The Judicial Crisis Network’s Carrie Severino said in 2015 about Roberts’s majority opinion upholding the national applicability of health exchange subsidies as part of the Affordable Care Act: “If the chief justice is willing to join the court’s liberals in this linguistic farce, it’s time we admitted that our national ‘umpire’ is now playing for one of the teams.” Her organization recently ran ads warning Republican voters to size up their party’s presidential candidates and avoid those who would appoint stealth liberals such as Roberts. The attacks are largely related to Roberts’s twin votes to uphold the Affordable Care Act, although there have been other supposed apostasies as well, such as splitting the baby on Arizona’s restrictive immigration law by striking down some parts while upholding others. And yet, by most measures, Roberts has been one of the most conservative justices in the country’s history. Clearly, conservatives have come down with a severe case of Roberts derangement syndrome.

The symptoms of this spreading illness manifested themselves in their most alarming form recently in the person of Iowa Senator Charles Grassley. In a speech on the Senate floor on April 5th, Senator Grassley bafflingly pinned the blame for the politicization of judicial nominees on the Chief Justice himself. Grassley’s statement was ostensibly in response to comments Roberts made regarding the lamentable politicization of Supreme Court confirmation hearings, linking those theatrics with the public’s growing, negative view of the Supreme Court as a political institution. Yet, Roberts’s comments were made before Justice Scalia’s death two months ago and were thus unrelated to the ongoing political battle over President Obama’s nomination of Merrick Garland to the Supreme Court. That didn’t matter to Grassley, who seemed to relish his chance to slam the Chief Justice. His statement—unthinkable a few short years ago—is worth reprinting at length for its breathtaking scope (if not its stilted prose):

Mr. President, a significant number of Americans believe the Supreme Court is highly politicized. Its approval rating has fallen over the years. Not surprisingly, its approval rating has dropped most drastically in recent years following the President’s appointment of Justices Sotomayor and Kagan. There are four Justices who vote in a liberal way in effectively every case the public follows. There are two Justices who stick to the constitutional text and vote in a consistently conservative way. One Justice votes mostly but not always in a conservative way. And one Justice votes sometimes with the conservatives and sometimes with the liberals. All of the liberals were appointed by Democrats. The conservatives and the swing Justices were appointed by Republicans. But in a speech shortly before Justice Scalia’s death, Chief Justice Roberts maintained that the public wrongly thinks the Justices view themselves as Democrats or Republicans…[T]he Chief Justice has it exactly backwards. The confirmation process doesn’t make the Justices appear political. The confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences. In short, the Justices themselves have gotten political.  And because the Justices’ decisions are often political and transgress their constitutional role, the process becomes more political. In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem. They believe that a number of his votes have reflected political considerations, not legal ones.

According to Grassley, there are but two justices who stick to the constitutional text! Presumably Grassley had Justices Clarence Thomas and Alito in mind, and not Roberts. Don’t tell that to President Bush, who assured the country during his announcement of Roberts’s nomination that the future Chief had “the highest integrity” and was “a person who will faithfully apply the Constitution.”

Grassley’s statement is so perfectly contradictory, that it really is a masterpiece of political spin. He first sets up the problem: politicization of the Supreme Court. Then he spends six sentences characterizing the Court in a highly partisan political way that conforms to only the most simplistic analysis of the High Court’s work. He blames Obama’s appointees for the public’s dim view of the institution. He equates originalism with faithfully applying the Constitution, meaning only that a far right judicial philosophy could possibly be apolitical. Then he proceeds to characterize each justice as nothing more than a product of all-encompassing, broad, political ideologies. He thus feeds into the public perception of the Court as divided with Democrats on one side and Republicans on the other, an idea against which Roberts was speaking out in the first place. In doing so, Grassley chose to ignore the many opinions in which the justices show themselves to possess extremely different philosophical stripes even within their alleged tribe. From just this term alone, with scores of opinions left to release, the Court has ruled in ways and lineups that do not meet Grassley’s careless, casual, and all-too-common depiction of the Court as a political body. The Court ruled 8-1 in a death penalty case which produced a highly contentious argument, with Justices Ruth Bader Ginsburg and Stephen Breyer joining the majority in upholding death sentences even though those two argued last term that the death penalty was unconstitutional. The Court ruled 8-0 in a voting rights case many predicted would cut 4-4 along partisan lines. And finally, this term the Court even produced a 6-3 decision with a lineup of dissenters of Thomas, Ginsburg, and Sonia Sotomayor.

What this really comes down to is Grassley’s frustration that conservative justices aren’t all playing by the same rules as Republican legislators. For members of Congress, independent thinking is unthinkable; you act as a party even if it means opposing programs and policies you actually support. That’s how every congressional Republican voted against a pro-business, market-based health care reform in the Affordable Care Act, and how a party nominally in favor of tax relief, entitlement cuts, and job creation could oppose every element of the President’s various budget proposals that included each of those elements. Grassley is so thoroughly enmeshed in the Republican Senate caucus’s partisan groupthink that he cannot begin to comprehend the patent hypocrisy in decrying the political polarization of the Court, while in the same breath proclaiming: “Justices appointed by Republicans are generally committed to following the law.” Roberts rejected two legally dubious challenges to the Affordable Care Act and has shown independence and nuanced thinking in many of his decisions. To Grassley, though, Roberts purposely ignored the memo from the conservatives who put him on the Court that Obamacare was an anathema. This fact, to him, means only that Roberts substituted politics for sound judgment and judicial reasoning. As Jeffrey Toobin noted recently in The New Yorker: “The crudeness of Grassley’s attack on Roberts, from a senator who claims to want to avoid a politicization of the court, is astonishing.”

To some extent, Republicans are understandably sensitive to ideological betrayal by their own Supreme Court nominees. Half of the last eight Republicans appointees to the Court have not worked out as planned. Sprinkled in with hard-right justices Antonin Scalia, Thomas, and Alito (and Roberts) were noted moderates Sandra Day O’Connor and Anthony Kennedy along with left of center Justices John Paul Stevens and David Souter. Democrats, meanwhile, have used their selections to effectively fill the court with center-left justices. There have been no defections on major political issues in their ranks. In contrast, Nixon appointee Harry Blackmun wrote the majority opinion in Roe v. Wade and Reagan selection Kennedy penned a series of gay rights opinions culminating in last year’s decision in Obergefell v. Hodges, which mandated marriage equality throughout the nation.

But the criticism of Roberts is of a different kind. By any measure, Roberts is extremely conservative. For instance, as the New York Times summarized, last term “the court issued six major decisions — on health care, marriage, housing discrimination, redistricting, the death penalty and the environment. Except in the health care case, Chief Justice Roberts voted with the court’s conservative wing every time.” More importantly for movement conservatives, Roberts has actively led the Court in new and astonishingly conservative ways. He was part of the majority that found an individual right to bear arms, that opened the floodgates of campaign spending by independent groups, gave religious protections to corporations, and eviscerated key parts of the Voting Rights Act and laws providing for desegregation in public schools. Conservatives are really upset simply because a conservative Chief Justice undermined their hyperbolic rhetoric about the Affordable Care Act—the biggest political issue to reach the Court in years. Roberts twice decided to reject harmful, procedural challenges to a democratically passed act of Congress simply because it was also a Democratically passed act of Congress. He first did so reluctantly, and then, when the challenge became even more legally insubstantially and brazenly political, more robustly. In short, Roberts is strongly conservative but also independent minded—exactly the type of judge a Republican committed to an impartial judiciary should celebrate.

Grassley’s fit of pique is surprising nonetheless given the last year of presidential campaigning. If Republicans should have learned anything from the last year, it is that their unceasingly angry rhetoric about every Democratic proposal and their unending portrayal of Obama’s mere breathing as unconstitutional overreach has had serious negative consequences for their own survival. Republican voters have not only been over-promised about what Republican lawmakers can achieve, they have been over-warned about conservative betrayal. Screaming about RINOs and acting as if John Boehner and Eric Cantor were liberal squishes was sure good for business for a little while—conservative media gets a lot of revenue from riled up traditionalists and Republicans received a lot of midterm votes from terrified conservatives—but there is a serious downside. That downside is that the base ignores or is unmoved by real conservative accomplishment, instead seeking greater and more destructive token gestures with each passing year. Now the disillusionment has reached such proportions that the Republicans’ two remaining presidential candidates are unelectable, incapable of governing, and in many respects more attitudinally than ideologically conservative. Grassley’s rhetoric only feeds this monster by portraying what is in reality a conservative success story as a total failure. John Roberts’s nomination and confirmation to the Supreme Court was a triumph for mainstream conservatives. Only this Republican Party, led by men like Grassley, decomposing from inactivity on the Senate floor, could look at a judge so firmly on their side and see a mortal enemy. As with the current nomination of Judge Garland, Republicans insisting on bigger, grander, and purer results may find themselves with nothing at all.

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