Lately, the Liberal Hive has been buzzing menacingly at Chief Justice Roberts and Justice Kennedy. These two justices are seen as dangerous sympathizers to overturning much if not all of Obamacare. A recent New Yorker piece by one of the worker bees, Jeffrey Toobin, offers a rare peek into the High Court’s inner sanctum . . . but it's really a glimpse into the Liberal Hive’s own inner recesses.
First, notice Toobin’s selective indignation. Toobin chastises Roberts for his work in the 2009 Citizens United case, accusing the Chief Justice of hypocrisy and breaking a promise during his Senate confirmation hearings to respect prior Court precedents. In Citizens United, the Supreme Court overturned its 2003 case that had upheld a federal campaign finance law. Yet Toobin spared the liberal wing of the Court when during an oral argument it criticized an 1886 Supreme Court case recognizing the constitutional rights of corporations. Toobin also withheld condemnation from Justice Kennedy’s majority opinion in Lawrence v. Texas, which struck down a Texas anti-sodomy law. In the process, the Court also voided its 1986 case that had upheld an anti-sodomy law.
What gives? Toobin told us SCOTUS precedent is important, nearly sacrosanct. But what Toobin shows us, over and above his decibel level, is that judicial fidelity to the Constitution itself means nothing to liberalism if it obstructs any of liberalism’s grand projects, such as the very illiberal project of politicizing all of life and centralizing political power in D.C. Toobin is agitated by the disturbance of precedent, but only those cases that by a suspicious coincidence advanced liberal outcomes.
Second, note Toobin’s rough treatment of Justice Kennedy, the Court’s inveterate swing voter. The definition of a swing voter is someone who fails to vote consistently for liberal outcomes and whose voting pattern evinces no discernible philosophy of law. Let this be a lesson to all of us who seek the mellifluous praise of the chattering class or at least the avoidance of its enmity. To maintain the flow of honey and avoid the nasty stings, you must toe the liberal line in every important case. No deviations. Got that? As Justice Kennedy did, you can vote to uphold Roe v. Wade, you can vote to overthrow anti-sodomy laws, but if you dare threaten a historic consolidation of federal power—watch your step.
You’ll subject yourself to contemptuous smears and withering denunciations from the likes of Toobin. Kennedy, according to Toobin, “tend[s] to swing wildly from one direction to another” and is “an extremist of varied enthusiasms.” Toobin portrays Kennedy as a Roberts toady who downright “relishe[s] saying ‘what the law is.’”
There is no ultimate concession to or compromise with the Hive after which a man is free to resume independent thought and action. The chattering class will expect him to stay bought. He shouldn’t anticipate its grudging respect for his occasional, irrepressible bursts of individuality. It can never respect a conservative compromiser. It may like him, but it will never respect him. In fact, to the degree that it has reaped benefits from the conservative’s past compromises, it will detest and censure any reassertion of independence.
Third, note Toobin’s description of the Deputy Solicitor General’s meltdown at the first oral argument of Citizens United. The Solicitor General’s office is an elite cadre of federal court litigators respected by the Supreme Court. When asked whether the federal campaign finance law could be used to ban a 500-page book that ended with a sentence “And so vote for X,” the Deputy Solicitor General told the Court yes. Toobin attributes this unhelpful response to the Solicitor General’s scrupulous adherence to Court precedent and honesty about bad facts. But the Solicitor General should be criticized for failing to defend the First Amendment, whose text and historical underpinnings would have provided a sound basis to just say no. If the advocates would have relied on the Tenth Amendment and the simple doctrine of enumerated powers, resort to the First Amendment would have been unnecessary. Congress has no enumerated power to regulate campaign speech.
There is marked similarity between the Deputy Solicitor General’s argument in Citizens United and the Obamacare oral argument. So something else may be going on. At the Obamacare oral argument, the Solicitor General was unable to articulate any limiting principle to Congress’s power under the Commerce Clause. This astonished and dismayed even liberal observers. He had argued before the Supreme Court in 17 other cases, so inexperience and nervousness likely weren’t to blame.
What may be happening is that the federal government under the Obama Administration has given up on the charade of articulating limiting principles. For many decades, the federal government has bucked the text, history, and structure of the Constitution. It then has to somehow fabricate principles out of the tangled mess of presidential, congressional, and judicial departures from the Constitution, errors that have compounded over decades. Imagine how tedious and dispiriting that work would be. Add to that impossible task the Obama Administration's arrogant lust for power and it's not hard to imagine a ban on concessions to "limiting principles."