Okay, I’m back from my vacation. Where were we? Oh, yes, we were discussing the delicious spectacle of conservative superhero Richard Posner’s interview with NPR in which he referred to the modern GOP as a bunch of goofs and seemed to call the three amigos of the Supreme Court backstabbing lunatic crackpots. He also said that he was becoming less conservative as a result of having to witness the sad spectacle of the Republican Party over the last ten years. Here’s his quote about the way Chief Justice John Roberts has been treated by conservatives, including his fellow conservatives on the Court:
“Because if you put [yourself] in his position … what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the 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 re-examine your position.”
Judge Posner has been on the 7th Circuit of Appeals since 1981, serving as its chief judge during the entirety of Bill Clinton’s presidency. While he has never been a down-the-line orthodox conservative, he has been the premier conservative legal thinker for more than thirty years. The right is responding to his comments by insisting that he was never much of a conservative in the first place, which is a defensible position up to a point. The problem is that he’s not discussing the war on drugs or marijuana; he’s discussing the Republican Party and the hostility of Alito, Scalia, Thomas, and Kennedy towards their Chief Justice.
It’s worth remembering that when the Supreme Court decided Bush v. Gore, Breyer and Ginsberg were the only two Justices on the Court who had been appointed by a Democrat. Yet, in a totally politically-motivated ruling, the Court ruled 5-4 to shut down the Florida recount and hand the presidency to George W. Bush. Both David Souter and John Paul Stevens voted with Gore.
The reason I cite that particular case is because it wasn’t really about judicial philosophy. It was about picking the president, which is a political act. And two Republicans voted, in effect, for a Democratic president. John Roberts definitely started his career on the Court to the right of Souter and Stevens, but that doesn’t mean he can’t drift in their direction. Just as Posner is feeling less and less conservative as time goes on, Roberts could feel the same way. To have one of the other conservative Justices leaking to the press is a serious violation of trust, probably made worse by Roberts’ uncertainty about the culprit. Judges are supposed to be dispassionate, but you can’t discredit the personal aspect of this. Roberts has been cast out of the conservative movement, and the only question is how he will respond.
