As is so often the case, the editorial page of The Wall Street Journal exposes what liberal duplicity hath wrought. This time it’s the Senate Judiciary Committee’s contingent of Democrats who used the Elena Kagan confirmation hearings to harangue the Roberts Court as wildly right of center. That’s hardly the case.
Yes, the Citizens United (corporate campaign donations) and McDonald (gun rights) cases are controversial, but such examples haven’t dominated the high court’s agenda. As the WSJ argues:
[T]he Roberts Court is really a centrist Court that swings left and right depending on the subject. It also routinely decides cases on narrow grounds that pull a larger majority. In the 2006 term, some 70% of the Court’s cases were decided unanimously, and this term saw 56% of the cases decided either unanimously or by an 8-1 margin. While that number has ebbed and flowed depending on the term, there’s no question Justice Roberts has proven to be a pragmatic jurist who is wary of overturning precedents without ample legal and historical justification.
On property rights this term, the Court ruled 8-0 against property owners in a case called Stop the Beach Renourishment v. Florida. On antitrust law, it ruled unanimously against the National Football League in a case that would have significantly loosened antitrust restrictions. In one of the term’s final decisions, Justice Roberts himself voted with the Court’s liberal bloc in a case that ruled out life sentences for juvenile criminals in non-murder cases.
Kagan, wisely, refused to enter the partisan fray by criticizing the court. It wouldn’t have been political suicide if she had, because Democrats will vote for her regardless, but it would have made the case against her that much more compelling for Republicans. That’s why Kagan didn’t go there.
Here’s the rub, though. Democrats are very uncomfortable with a court that isn’t solidly left leaning, because anything else puts their social agenda, won primarily over the decades by judicial fiat, at risk. Indeed, the lion’s share of liberals’ domestic agenda is reliant on friendly judges in the court system. It’s the principal reason they’re whining about the Roberts Court.