A Further Perspective

No Fury Like a Conservative Scorned

Will the right ever forgive John Roberts?

By 4.7.14

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He is “fit only to serve on Stephen Vincent Benet's hellish jury of American villains.” He “deserves perpetual condemnation and scorn.” He “will never be able to redeem himself.” He is a “worthless, scumbag, leftist.”

And perhaps my favorite: He “just burned down my house, killed my wife & kids & raped my dog....but today, he was walking by, saw my newspaper in the driveway & brought it to me. On that basis, you want me to give him some credit for doing the right thing?!”

Are we talking about President Obama’s good friend and murderous terrorist, Bill Ayers? Are we talking about convicted cop-killer Mumia Abu-Jamal? Are we talking about Whittaker Chambers?

No, this opprobrium was directed — by readers of this website — at the Chief Justice of the United States, John Roberts. It came in response to my recent article about Roberts’ majority opinion in McCutcheon v. FEC that included statements of fundamental principle which I described as “at least a partial redemption of Roberts (who I hope feels some need of redemption).”

Of the comments that were not so aggressively negative about Roberts, almost none were even faintly positive despite the results in a case that holds important pro-liberty, pro-Constitution precedent for future First Amendment disputes well beyond the campaign finance questions that were the specific issue before the Court.

You have to assume that a Court decision is good if it scares Jeffrey Toobin and angers Bill Maher as much as McCutcheon does.

But it seems that hell hath no fury like a conservative scorned; among you, dear readers, Chief Justice Roberts is less likely to be offered even slight forgiveness than, as another reader put it, to be allowed only to move up to the “8th Circle of Hades.”

Before continuing, two brief points:

First, I admit that the title of the article, “John Roberts Continues His Comeback,” perhaps overstated the degree to which such redemption is as yet occurring, if it is even possible (as I believe it is, but as many others clearly don’t). And the title did not focus readers on the key points of the article — although the subtitle ("Next shoe drops on campaign finance restrictions") did — which were the Court’s continued (and welcome) eroding of unconstitutional campaign finance restrictions and the majority’s reiteration that the First Amendment is designed to protect individuals, not the collective and not government.

Second, lest anyone suggest I am not sufficiently cognizant of Roberts’ devastatingly bad decision in NFIB v. Sebelius (which ruled that Obamacare is constitutional as a tax even though the law was explicitly written and sold to the public as a “penalty” rather than a tax), I wrote on the day of the decision in a note entitled “Roberts Wrecks America” that “This is nothing short of a disaster for the nation, and a huge black mark on John Roberts' legacy.”

Additionally, less than a year ago, I reviewed and recommended a short e-book by Senator Mike Lee (R-UT) entitled Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court's Obamacare Ruling. (For $3.79, it remains the best money you can spend to understand the Court’s error; the high quality of analysis is not surprising given that Lee was a law clerk for future Supreme Court Justice Samuel Alito and has himself argued cases before the U.S. Court of Appeals for the 10th Circuit.)

I wrote a couple of pages bashing Roberts’ Obamacare decision; Lee wrote 74. So I thought “Who better to ask this question of than Mike Lee? And so I did.

Specifically, I asked Sen. Lee, “As an attorney, a senator, and most importantly a defender of our Founding documents and what they stand for: Can John Roberts redeem himself? And how should people who feel the way that you and I and my readers do about his Obamacare decision think about him going forward?“

The senator (demonstrating that he thinks the question is important) responded:

Chief Justice Roberts is at heart a gifted and dedicated jurist. I may never completely understand, much less agree with, his conclusions in NFIB v. Sebelius. Nevertheless, I anticipate that his wrong turn in that case will not preclude him from doing the right thing in other cases in which his wisdom and talent are sorely needed and deeply appreciated.

At the end of the day, I prefer to think of Chief Justice Roberts not as a bad jurist who sometimes gets it right, but as an exceptionally good jurist who made a very serious mistake in 2012. I will never characterize what he did in 2012 as anything other than a tragic, avoidable error. Nevertheless, we have to remember that his career will be defined by far more than his ruling in NFIB v. Sebelius.

I agree with Mike Lee. Many of my readers clearly don’t, particularly with his last sentence which raises the interesting question, “How will John Roberts be remembered (assuming that he has a long career as Chief Justice)?”

Will he be a blackguard whose good decisions, whether few or many, are forever overshadowed by his faulty, even reprehensible reversal regarding Obamacare, allowing a clearly unconstitutional law of huge consequence to damage our nation’s budget, health care system, and fundamental liberty?

Or will he be viewed, as Sen. Lee suggests, as “an exceptionally good jurist who made a very serious mistake?”

While recognizing that commenters on political web sites, regardless of political affiliation or philosophy, tend to be a zealous and self-selecting group (which I mean as an observation and compliment, not a put-down), if commenters on these pages are representative of conservatives more broadly then John Roberts faces a long, perhaps impossibly long, and constantly uphill path to redemption.

But, if I may turn the conversation toward politics, my first reaction to the barrage of disdain for a very smart (and probably very good) man who holds the most difficult job to get in the United States, if not the world — there having been only 17 Chief Justices in the history of our Republic — was “this is why Republicans keep losing.”

John Roberts’ Obamacare error was larger and vastly more consequential than any error of an average politician or candidate. But the insistence of Republicans, and particularly the most conservative (and often most active and vocal) members of the party base, on philosophical perfection, on having no measurable affiliation with “the establishment,” and on never ever compromising (ever!) has a lot to do with why we are still suffering under a president named Obama and particularly under a Senate Majority Leader named Reid.

I will not rehash all the stories, but just suggest a few names: Todd Akin, Richard Mourdock, Ken Buck (whom I like and who I hope wins his race for Congress this year), Christine “I’m not a witchO’Donnell, and Sharron Angle (a very nice woman who was not ready for the big time in a race where the GOP had a rare chance to repeat John Thune’s incredible take-down of Tom Daschle).

So on the one hand, during primary season — and believe me I understand the motivation to elect true conservatives rather than RINOs or people who have simply been in government far too long — activists and Tea Partiers (usually my preferred type of Republican) too often support those who seem to have the “right” ideas but who are weak candidates and likely to lose otherwise winnable races, even when a stronger candidate whose ideas are 90% identical was available.

(A little inside baseball: Todd Akin was not entirely conservatives’ fault, or at least not unanimously so. Although he was endorsed by the NRA, Rick Santorum, Jim DeMint, Newt Gingrich, and Mike Huckabee, the Club for Growth opposed him and FreedomWorks endorsed another candidate despite the wishes of former Rep. Dick Armey whose split with the organization seemed partly to relate to that decision. But what were so many high-profile conservatives doing endorsing a candidate who was so weak that the exceptionally vulnerable Sen. Claire McCaskill (D-MO) and her Democratic supporters spent over $1 million to help Akin win the Republican primary?)

On the other hand, a different analysis (and much more in-depth than I will attempt here) can be offered about the 2012 presidential election, with data suggesting that a few million white voters stayed home in an election that showed the most strongly Republican-leaning vote (in percentage terms) among whites since 1984.

It was often said that Mitt Romney was just not conservative enough. Is it better to withhold support from imperfect candidates or to hold one’s nose and vote for the better one? Or is the right philosophy that “the lesser of two evils is still evil”?

Many, including many Spectator readers, decided the latter. And in such an evenly divided nation, it doesn’t take many to swing an election. So now we have a wrecking ball of an administration determined to “fundamentally transform” America in the frightening few years it has left.

Some suggest that the left’s massive media campaign in support of Obamacare, particularly making it sound as if a Court decision striking it down would be fundamentally undemocratic (as if that were the point of the Constitution), had an impact on Chief Justice Roberts. CBS News reported that “Roberts pays attention to media coverage” and that “there were countless news articles in May warning of damage to the court — and to Roberts' reputation — if the court were to strike down the mandate.”

If true that John Roberts does indeed care about public opinion, which is to say if he is a human being with at least a hint of normal behavior patterns for the species — such as liking, even if not explicitly seeking, appreciation for a task well done — then it is a particularly bad idea for conservatives to refuse to give Roberts an “Attaboy” for doing something that advances liberty and turns the nation a fraction of the way back toward the Constitution.

Couldn’t even the most principled fighter for a cause have marginally less motivation, perhaps an occasional moment of “Why am I doing this?” if his “allies” won’t acknowledge his efforts and his successes? When that fighter has one of the most powerful positions in any government on the planet, those allies need to rethink a few things.

Christianity and Judaism incorporate the concept of redemption, forgiveness, and atonement. John Roberts may never explicitly apologize for his terrible volte-face on Obamacare. But the refusal or inability of conservatives to see any good in the man — a man who most certainly is on “our side” — is as unwise as it is unbecoming.

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.