Marc Thiessen's recent attack on Chief Justice John Roberts for his opinion upholding the health care reform law attempts to move the right's ideological goal posts for the Court from the strongly conservative part of the field into what Reagan Administration Solicitor General Charles Fried has called “radically reactionary” territory. Thiessen, a former George W. Bush speechwriter, expressed his discontent in a July 2 Washington Post op-ed that criticized Roberts - a Bush appointee - for agreeing with the court's liberal members in an opinion upholding the Affordable Care Act. He framed his attack as a lament over the supposed difficulties Republican presidents have had in confirming dependably conservative justices.
But in doing so, Thiessen downplayed Roberts' extensive record of voting similarly to his fellow conservatives, especially Samuel Alito, whom Thiessen identified as a reliable conservative. Thieseen also ignored the well documented shift in the court's ideological center in recent years: the four “liberal” justices are much closer to the center than William Brennan, Thurgood Marshall and other justices on the court's left only a few decades previously. In this way, Thiessen paints a picture of liberal triumph and conservative frustration which bears scant relationship to reality, which is the most conservative Supreme Court in modern times.
Thiessen grouped Roberts with justices who disappointed conservatives (Sandra Day O'Connor and David Souter, both of whom are no longer on the court) as opposed to acknowledged right-wing successes Antonin Scalia, Clarence Thomas, and Samuel Alito. He attempted to make this case by focusing solely on the health care decision, and downplaying the rest of Roberts' record as a justice.
That record is clear. Roberts is, to use Thiessen's expression, a “rock-ribbed conservative.” In the just-completed 2011 Supreme Court term, he voted with the Thiessen-approved Justice Alito in 90.5 percent of cases, after voting with him 96.2 percent of the time in the 2010 term. Roberts also voted with Justice Thomas in 87.8 percent of cases and Justice Scalia in 86.5 percent of cases in the most recent term. In other words, in the overwhelming majority of cases, Roberts votes with the justices whom Thiessen acknowledges to be acceptably conservative.
Thiessen makes no attempt to dig into Roberts' record in high profile cases beyond the health care decision, perhaps because doing so would further undermine his argument. Time after time in high-profile cases in which the court has split 5-4, Roberts has voted with his fellow conservatives. A partial list of examples would include Citizens United (empowering corporations and wealthy individuals to spend unlimited money in political campaigns); Wal-Mart (preventing women alleging sex discrimination from joining together to seek justice); Concepcion (allowing corporations to manipulate fine print in contracts to keep ripped off consumers from joining together in court); and Ledbetter (preventing a woman who was paid less than men from going to court).
A recent study confirmed that Roberts (along with his colleagues Justices Alito, Scalia, and Thomas, and his mentor, former Chief Justice William Rehnquist) is one of the “five most conservative justices to serve on the court since 1937.”
Thiessen contrasted his inaccurate portrait of conservative failure with what he imagines to be a triumphant judicial liberalism. But this analysis fails by looking no further than the subject of Thiessen's scorn - the health care reform decision. What Thiessen ignored is the Medicaid portion of the health care decision, in which two of the liberal justices (Stephen Breyer and Elena Kagan) joined the court's conservative bloc in imposing unprecedented restrictions on the Congress' spending power. He further ignored a point many commentators have made: that today's liberal justices are much closer to the center than a previous generation of justices on the court's left. Geoffrey Stone of the University of Chicago Law School has noted that none of the current liberal justices is “even within hailing distance” of justices such as William Brennan and Thurgood Marshall. Another scholar making the same argument about the Court's drift to the right points out that Marshall and Brennan argued that “the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.”
The absence of views that are further left of center than those of the current liberal justices has contributed to the court's tilt to the right. There is no balance to the extreme conservatism of the Republican-appointed justices, all of whom (including Roberts) agreed with what Reagan Administration Solicitor General Charles Fried has called a “radically reactionary new doctrine” to find the health care law to be beyond Congress's powers under the Commerce Clause.
The current Supreme Court is very conservative, and one decision, even one that attracts as much attention as the health care case, cannot change that. It is not complicated how the court got this way - its conservatives are very conservative by historical standards while its liberals are not all that liberal. But for Marc Thiessen, even “radically reactionary” isn't conservative enough, and he makes the case for future Republican Supreme Court nominees to be so conservative that they could not possibly break with the right.