John Roberts’s BetrayalThe "stealth strategy" for the court has failed -- try winning elections instead.The Supreme Court was poised to deliver conservatives a major victory by overturning a hated liberal policy with little basis in the Constitution. A majority of the justices had been appointed by Republican presidents. Some of them were so conservative that Senate Democrats had attempted to prevent their confirmation.
Yet when the much anticipated ruling was finally handed down, the liberal policy was upheld with fairly minor caveats. A Republican-appointed justice unexpectedly voted with the liberal bloc. Instead of a victory, conservatives feared they had endured a permanent defeat on an important issue, and in an election year to boot.
While this certainly describes the past day’s events, it was also true 20 years ago. When the Senate narrowly confirmed Clarence Thomas, liberals feared he would be the deciding vote against Roe v. Wade. Well, Thomas did rule that Roe was wrongly decided at his first opportunity. But in 1992’s Planned Parenthood v. Casey, a 5-4 majority affirmed the core holding of the infamous abortion decision.
Anthony Kennedy, a Reagan appointee, saved Roe with a pivotal flip-flop and ended up writing an opinion as filled with liberal clichés as any amicus brief filed by a pointy-headed lefty law professor. Sandra Day O’Connor, also a Reagan pick, was another of three Republicans to join the plurality opinion. Harry Blackmun, a Nixon appointee, gave us Roe in the first place. Earl Warren, William Brennan, John Paul Stevens, David Souter—some of the most liberal justices of the postwar era were actually named by Republican presidents.
It’s too early to include John Roberts in that sad pantheon of Republican judicial failures. The chief justice has generally been the conservative jurist his supporters had hoped he would be, and a conservative conviction—a belief in judicial restraint—likely factored into his opinion in National Federation of Independent Business v. Sebelius. But Roberts’s untimely defection was in many respects a bigger blow to conservative legal circles than Kennedy’s two decades ago.
Continued at: The American Conservative'The most liberal justices of the postwar era were actually named by Republican presidents'
