As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.
But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.
Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:
Viewed in isolation, the Supreme Court term that just ended had elements of modesty. The court declined to do away with affirmative action, gave Congress another shot at salvaging the Voting Rights Act and refused to find a constitutional right to same-sex marriage.
But glancing at an end-of term snapshot can be misleading….
Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.
His patient and methodical approach has allowed him to establish a robustly conservative record while ranking second only to Justice Anthony Kennedy as the justice most frequently in the majority.
This is a stunningly honest statement of the Times’s extremism on legal issues. Roberts has, the Times tells us, made major ruling after major ruling upholding liberal conventional wisdom on a host of cultural and political issues deemed essential to the liberal project, and he has often sought not to use the court majority to push through wholly conservative opinions but instead to engage with the liberal justices, find common ground, and forge compromises that meet in the middle.
That may sound like an eminently reasonable and, from a political standpoint, admirable record. But the Times strongly disapproves of such behavior, because it does not want the court to possess such legitimacy and it does not approve of compromise with conservatives it believes should only be the object of demonization.
The Times tells us that a larger-than-usual percent of the court’s decisions were unanimous this year. But that, too, is bad news, because the article also tells us that Obama’s solicitor general has had below-average success in front of the court defending administration preferences. To the Times, that means the liberal justices are complicit in a rightward shift. The reality, of course, is that President Obama, a supposed constitutional law expert, is uniquely poor at governing according to the Constitution.
The Washington Post also tries to fit this week’s court decisions into its larger narrative about the Roberts court, with similar results. It reviews the liberal decisions handed down by the judges recently and then quotes a former lawyer in the Obama White House: “If you weren’t paying close attention, you might say, ‘What a liberal Supreme Court we have.’ ”
That’s an interesting phrase, “if you weren’t paying close attention.” And it basically sums up the way the media, confronted with the essential and obvious fraudulence of its narrative about the Roberts court, has explained away its journalistic advocacy.
Don’t be fooled by the moderate and ideologically diverse record of the Roberts court, they say, and don’t be fooled by the lengths to which Roberts will go to compromise with liberal justices and craft decisions that all the judges can get behind. That may be the reality, but it conflicts with the press narrative and one of them must be wrong. It can’t be the press, can it?