Obama, Roberts, and the Left Juristocracy

Obama, Roberts, and the Left Juristocracy

We have seen what happens when Barack Obama comes up against real conservative opposition: he loses–and he is a sore loser. There was Paul Ryan in 2010, demolishing the Obamacare’s fuzzy math at Blair House. There was Benjamin Netanyahu in 2011, giving Obama a lesson on the Middle East. There was even Joe the Plumber in 2008, who exposed Obama’s socialist philosophy with a simple question. Obama didn’t like that.

But there have always been conservatives willing to give in to Obama without a fight–for various reasons. There are the media and Beltway elite, such as New York Times columnist David Brooks, flattered by Obama’s private school pedigree and his “perfectly creased pant.” There are the big-government conservatives, such as David Frum, who don’t fear Obama as much as they do the small-government American voter. And, yes, there are those, who are afraid to confront Obama’s radical past for fear of stirring up charges–false, never mind–of racism. That’s why John McCain famously failed to bring up Obama’s radical, racist pastor, Jeremiah Wright.

Throughout his career, Obama has relied on such conservative capitulation. He never would have been elected president of the Harvard Law Review if it had not been for the votes of the conservative bloc of editors, who thought him better than the alternative. He never would have been a so-called “professor” (lecturer, actually) at the University of Chicago Law School without the acquiescence of that institution’s supposedly conservative faculty and administration. As a state senator in Illinois, he made little headway as a radical, but built support for his U.S. Senate run by charming the Chicago elite with some pro-business political stands. In 2008, Republicans running in close races for state office in Illinois circulated photographs of themselves with Obama.

As President, Barack Obama enjoyed early capitulations by a handful of Senate Republicans on his disastrous stimulus bill, and by a few House Republicans on his senseless cap-and-trade legislation (which, thankfully, never went further). Then came the town hall meetings of August 2009, when ordinary citizens–denigrated by our Democratic  betters as Brooks Brothers-wearing suburban snobs or un-Americanswastika-carryingtroglodytes–turned out in droves to confront members of Congress about the Obamacare bill. The Tea Party mobilized to win the 2010 elections for the Republican party, removing Democrats and putting some spine into the GOP leadership–or, more accurately, making them fear the voters more than Obama himself.

But the latest capitulation, by Chief Justice John Roberts–whose nomination then-Senator Obama opposed in 2005–has taken conservatives by surprise, not least because his reasoning in his Obamacare opinion is so shoddy. It was widely expected that Roberts would oppose using the Commerce Clause to allow Congress to do whatever it wanted, but entirely unexpected that Roberts would give the same effective power to Congress through its taxing power, when the Obamacare legislation never invoked that power or even the word “tax.”

Some conservatives, seeking a silver lining, hailed Roberts for limiting future abuses of the Commerce Clause. But, taken with Roberts’s surprising decision to join the majority earlier in the week in striking down much of Arizona’s immigration law, it seems that Roberts’s ruling on Obamacare is part of a broader political gesture. Roberts succumbed to Obama’s political bullying–ostensibly to save the Court as an institution. But in doing so, Roberts yielded not only to Obama’s vision of big government, but to the legal left’s idea of judicial review–that it is a tool to be wielded only in defense of the liberal agenda, not in defense of the Constitution.

In 2004, the legal scholar Ran Hirschl–who taught briefly at Harvard Law School–published an insightful book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Hirschl pointed out that in much of the world, judicial review had become a tool of the liberal elite–from which most judges emerge–for defending their interests from more conservative majorities. The United States has long been an exception to that trend–less because of conservative appointments to the Supreme Court, more because of the unusual American reverence for our Constitution–but now it would appear the Roberts Court has joined it. The Chief Justice was not defending the political neutrality of the judiciary, but its political supremacy–which can only persist, in the Obama era, if the Court is willing to bow to liberal legislative priorities like Obamacare.

Thus the capitulation of the Chief Justice on Obamacare was a surrender to Obama–and the radical legal cohort he brought with him to Washington–on the role of courts in defending liberal prerogatives. When Obama issued his infamous statement after the oral arguments in March, he attacked the idea of judicial review, as if that had not existed since Marbury v. Madison (1803). But Obama’s point–clumsily expressed–was that judicial review would be in danger going forward. Much like President Franklin Delano Roosevelt’s threat to pack the Court in 1936, Obama’s threats–on Citizens United and again in Obamacare–were not just about future appointments to the Court but the future of the Court itself, which can be constrained to a great extent by Congress. 

Roberts’s “switch”–on immigration, and now on Obamacare–can be taken as a sign that he received the message Obama was trying to send. Though he easily could have, and should have, ruled against Obama in both cases, Robert capitulated–not to save the Court as an institution, as Charles Krauthammer has argued, but to save the power of judicial review, and the ascendant role of the juristocracy, neither of which are intrinsic to the constitutional design of the judiciary, and which Democrats–who have already threatened to undo the First Amendment itself to thwart the effects of Citizens United–could attempt to control.

In the short to medium term, Roberts’s capitulation could have very concrete consequences. In addition to administration-friendly rulings on health care and immigration, the Court is likely to take a more liberal route on social issues such as gay marriage, as the lower courts have done. The Court has been expected to take a tough approach to Section 5 of the Voting Rights Act–a section that Obama has put in danger by challenging state voter ID laws–but it may very well back down, given the evident new direction Roberts has established.

Like past conservative capitulations, Roberts seems to have made what he may believe is a good bargain: giving in to Obama in order to protect his own power, and that of his fellow judges and lawyers. He will find, however, that Barack Obama’s transformative ambitions, like his astounding ego, know few boundaries. Obama, his party, and the mainstream media will be back to trashing the supposed conservative majority on the Court in no time at all. And it will fall to other conservatives–with less to gain but more to lose–to stand up to the President.


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