In her latest nytimes.com column, posted Wednesday night, "The Mystery of John Roberts," Linda Greenhouse, former Supreme Court reporter for the New York Times, retraced previous conservatives losses at the Supreme Court from the pre-Internet days of the early '90s and the relatively muted response of conservative activists.
That set the stage for Greenhouse to criticize the "torrent of right-wing leaks" and "invective" that poured over Roberts after his shock decision upholding Obama-Care. Greenhouse, whose strident liberal moralizing is obvious now that she is no longer a reporter, suggested Roberts may have "evolved" to his position partially due to "the breathtaking radicalism of the other four conservative justices," and quoted one of her favorite judges in suggesting Roberts may read the criticism and think to himself "What am I doing with this crowd of lunatics?"
The obvious reason for this trip down memory lane is to draw a then-and-now comparison with the torrent of right-wing leaks in the immediate aftermath of the decision to uphold the Affordable Care Act. I’m not surprised by the claim that the crucial vote by Chief Justice John G. Roberts Jr. to uphold the health-care mandate under the Congressional tax power represented a late switch, having suggested that scenario myself in a column written the day of the decision. But I’m amazed by the leaks (to be clear, I had none) and by the invective that continues to be heaped on the chief justice.
I doubt there was a single reason for the chief justice’s evolution (I know, conservatives hate that word in the context of Supreme Court justices’ ideological trajectories), but let me suggest one: the breathtaking radicalism of the other four conservative justices. The opinion pointedly signed individually by Justices Kennedy, Thomas, Antonin Scalia and Samuel A. Alito Jr. would have invalidated the entire Affordable Care Act, finding no one part of it severable from the rest. This astonishing act of judicial activism has received insufficient attention, because it ultimately didn’t happen, but it surely got the chief justice’s attention as a warning that his ostensible allies were about to drive the Supreme Court over the cliff and into the abyss. (Extraneous question: Is the liberal love affair with Anthony Kennedy -- which should have ended five years ago with his preposterously patronizing opinion in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003 and suggesting that women are incapable of acting in their own best interests -- finally over?)
Indeed, before she retired as a reporter, Greenhouse in July 2008 attacked Justice Kennedy for sexism after he upheld the ban on the gruesome abortion procedure. Greenhouse continued:
Readers of this column know from my regular references to Judge Richard Posner of the federal appeals court in Chicago that he is one of my favorite judges. A pragmatic libertarian and prolific author, Judge Posner has the enviable quality of being willing to say out loud exactly what he thinks. So his comment on what may lie ahead for John Roberts, in a July 5 interview with Nina Totenberg of NPR, was perhaps not surprising, but I still found it amazing. Here is what he said:
“I mean, what would you do if you were Roberts? All of a 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 reexamine your position.”