A recent New York Times column by Linda Greenhouse follows the latest evolution of the Right’s attack on America’s judiciary.
Her introduction is arresting, to put it mildly.
Do you hold Chief Justice John G. Roberts Jr. responsible for the ascendancy of Donald Trump? The thought never crossed your mind? Then you probably haven’t been reading the conservative blogosphere, where Chief Justice Roberts, target of bitter criticism for his failure to vote to dismantle the Affordable Care Act, is now being blamed in some quarters for Donald Trump as well.
Evidently, the Chief Justice’s refusal to rule against the constitutionality of the Affordable Care Act was a “sucker punch,” that robbed the Tea Party of a victory it “expected and deserved.” This defeat on an issue of constitutional interpretation meant–in the twisted “logic” of Tea Partiers–that there is no point relying on the courts.
Greenhouse says the lesson they internalized was “if you want to beat Obama you have to get your own strongman.” Guess who?
Even before the Trump-focused blame game started, Chief Justice Roberts was well on his way to becoming the political right’s favorite punching bag. In a rambling speech on the Senate floor last month, Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, defended the Republican refusal to move forward with President Obama’s nomination of Judge Merrick B. Garland to fill the Supreme Court’s vacant seat. Playing off an observation the chief justice had made shortly before Justice Antonin Scalia’s unexpected death, to the effect that the Senate confirmation process had become unfortunately divisive and political, Senator Grassley said it was the Roberts court itself that was political. “Physician, heal thyself,” he said, and then offered this observation:
Justices appointed by Republicans are generally committed to following the law. There are justices who frequently vote in a conservative way. But some of the justices appointed by Republicans often don’t vote in a way that advances conservative policy.
This is a reprise of an old song: if the Courts don’t rule the way I want them to–if they reach decisions incompatible with my preferences–they are “activist” and illegitimate and we are entitled to undermine both the individuals serving on them and the concept of separation of powers that is at the heart of our system of government.
Most lawyers I know would classify the Chief Justice as pretty conservative; his instincts seem to be to support institutional power, whether corporate or governmental. I have disagreed with several of his decisions, and with his articulation of a judicial philosophy. That said, he is clearly a brilliant lawyer whose jurisprudence falls within a longstanding American legal tradition.
The problem is that much of our current political leadership is unfamiliar with that tradition, ignorant of the role assigned to the Courts, and child-like in the belief that whenever a court renders a decision they don’t like, it must be illegitimate.
The problem is also larger than a bizarre attack on John Roberts. It is even larger than the profoundly damaging attack on the Supreme Court by Senate Republicans who are refusing to allow that body to discharge its constitutional duty of advice and consent.
The problem is, America is currently governed by petty, uninformed, ahistorical and (in several cases) deranged individuals who have commandeered the Crazy Train and are taking the rest of us with them.