John Roberts' right-wing crucifixion: How conservatives turned their back on Ronald Reagan's truest heir

The Supreme Court is poised to stake huge wins for conservatives in the upcoming term. So why do they hate Roberts?

By Heather Digby Parton


Published October 1, 2015 5:12PM (EDT)

Chief Justice John Roberts               (AP/Michael Conroy)
Chief Justice John Roberts (AP/Michael Conroy)

For many years, conventional wisdom had it that the Democratic Party was at war with itself, liberals fighting centrists with more than a few conservatives thrown in for good measure.The experience of the 1970s left a permanent impression on the political establishment that the left wing of the party is a group of unruly protesters intent upon bringing down the state and destroying the culture, leaving the adults in the party to constantly clean up their messes.The Republicans, on the other hand, have always been the disciplined party, their coalition happily working out their differences in an orderly manner and then coming together under one banner.

My how times have changed. Today, Democrats are handling their usual tensions with a fair amount of equanimity -- even in the face of an increasingly popular socialist, registered as an independent, running for president on the Democratic ticket. By contrast, to say the Republican party is in disarray is a laughable understatement.

The GOP base's abject loathing for the party establishment is palpable, and that feeling is mutual. Rowdy outsider candidates like Donald Trump, Ben Carson and Carly Fiorina continue to dominate in the polls, sending chills down the spines of the party poohbahs, who ineffectually try to fight back only to be thwarted at every turn. The situation has become so dire that the experienced congressional leadership is jumping ship and leaving it to inexperienced incompetents who don't even know enough to pretend to have integrity.

The right flank of the Republican Party is in full revolt: One group of wing-nuts is upset that the Republican inquisitors at the Planned Parenthood hearings failed to destroy the organization with a single blow. Another group of activists (led by Gini Thomas, the wife of Supreme Court Justice Clarence Thomas) is demanding an even greater voice in congressional affairs in the wake of John Boehner's resignation. Conservatives are demanding action and refusing to settle for anything less than total loyalty to their cause. Even the slightest deviation from right-wing doctrine is unacceptable and anything less than total victory and domination is a betrayal.

Nowhere is this rebellion better illustrated than in the way the right-wing base now views Chief Justice John Roberts. At the time of his ascension to the court in 2005, he was celebrated as the quintessential conservative judge. His resume was impeccable, his record was spotless, his credentials superb. He might as well have been conjured by a Disney imagineer. And by all objective measures, he has more than fulfilled their high hopes: Supreme Court scholars say the Roberts court is the most conservative court in the last 70 years:

Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.

The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts. But the ideological direction of the court’s activism has undergone a marked change toward conservative results. . . .

It is the ideological direction of the decisions that has changed. When the Rehnquist court struck down laws, it reached a liberal result more than 70 percent of the time. The Roberts court has tilted strongly in the opposite direction, reaching a conservative result 60 percent of the time.

The Rehnquist court overruled 45 precedents over 19 years. Sixty percent of those decisions reached a conservative result. The Roberts court overruled eight precedents in its first five years, a slightly lower annual rate. All but one reached a conservative result.

Next week Roberts will be celebrating his 10th anniversary as chief justice, and among his greatest hits are unleashing torrents of money into political campaigns, reversing the Voting Rights Act and school integration, upholding gun rights, advancing the dubious "religious liberty" doctrine, and protecting corporations from the predations of average citizens seeking redress. He also voted against granting habeas corpus to Guantanamo prisoners and environmental regulations, and that just scratches the surface. The upcoming fall term, meanwhile, promises opportunities to hack away at abortion rights on a level Carly Fiorina can only dream of.

One would think that with a record like that, Justice Roberts would be close to right-wing canonization by now. But he made a mistake: He failed to realize that his job on the court was to engineer a win for every single conservative cause that comes before him, without regard to the laws of the land -- or even the laws of nature. Certainly the credibility of the court should be irrelevant, since it is simply a partisan power tool the movement bought for the purpose of advancing its own agenda, and nothing more. To the modern conservative activist, there is no excuse for failure and no allowance for even the slightest deviation from the creed, even if it's a tactical step in service of a longer term goal.

Because he voted to uphold (a portion of) the Affordable Care Act, Roberts is now vilified as an apostate on the level of Judas Iscariot. And much as John Boehner was held in contempt for being unable to force the federal government to do the right wing's bidding (in spite of the fact that he only controlled one half of one branch of government) so too is he disdained by conservatives for being unable to force the court to ban gay marriage. In American politics today, too many people seem to be unaware of the limits of individuals to compel outcomes or the structural impediments of a democratic system.

In the GOP debates, Ted Cruz held up Roberts as an example of the kind of judge conservatives must never again support. Jeb Bush promised to only nominate judges "with a proven experienced record” to ensure that they don't "veer off" as Roberts apparently did. In right-wing speak, that means "never, ever voting for anything the right wing doesn't support." Now a group called the Judicial Crisis Network has created an ad sounding the alarm about the future of the court if more liberals like Roberts are appointed.

What is lost in all of this handwringing, as Ian Millhiser at Think Progress noted, is that Roberts is actually the true heir to their sainted Ronald Reagan:

Chief Justice John Roberts has twice earned the ire of his fellow conservatives for his decisions rejecting lawsuits attacking the Affordable Care Act, but the conservative obsession with bringing down Obamacare by any means necessary — or, for that matter, with using the courts to undermine the modern regulatory and welfare state — was not part of America’s legal culture for most of Roberts’s career. Indeed, it appears to have emerged not long after President Obama took office.

Roberts’s views closely mirrors the conservatism of the Reagan administration. He is skeptical of longstanding conservative boogiemen such as campaign finance or civil rights laws that do more than forbid the most obvious racist intent, but he also shares the liberal view that most policy should be set by elected officials and not the judiciary. “In a democracy,” Roberts wrote with King, “the power to make the law rests with those chosen by the people.” — a statement that is more controversial in conservative circles than it may seem.

Millhiser pegs Thomas as a true conservative ideologue and Alito as a hardcore partisan, both of whom still maintain heroic stature among the right wingers, which says a lot about what the conservative movement in 2016 is really all about.

Indeed, the Roberts case is emblematic of the new conservative movement. For all their genuflecting to the Reagan legacy, they've officially left it behind. It's hard to say who will embody their hopes dreams going forward, but the choices before them seem to Ted Cruz, Donald Trump and Ben Carson.

Whomever it turns out to be, you can be sure that they too will come up short. To Republican activists today, the expectation is that their chosen leaders must bat one thousand. Anything less is abject heresy subject to shunning and excommunication -- or worse. (Roberts had to get security for himself and his family during the “toxic climate that followed the health-care decision.") Since this is impossible, these movement conservatives are going to be disappointed again and again. Where that leads is anybody's guess.

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By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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