Liberal Silence about Liberal Judges

From Dahlia Lithwick, a week or so back, but still an interesting take:

Depending on whether you generally prefer your vitriolic abuse from the left or the right, it’s been a tough week for Chief Justice John Roberts. Having given conservatives the sun, the moon, and the stars for seven years, Roberts suddenly finds himself on the wrong side of everyone from theWashington Post’s Marc Thiessen, to the Wall Street Journal’s John Yoo, to presidential hopeful Mitt Romney, who not only returned the chief justice’s class ring and football jacket yesterday, but also vowed to only date future justices who are, well, a carbon copy of Mitt Romney.

In contrast to all the weeping and wailing that has accompanied what appears to be John Roberts’ single significant defection since joining the court, liberals have been strangely silent—as they are always strangely silent—about the myriad ways in which the liberal justices have disappointed them this term. Oh sure, we get a little eye-roll from Elizabeth Warren over Justice Elena Kagan’s vote in the Medicaid expansion part of the Affordable Care Act cases. But looked at in its entirety, the 2011 term was yet another festival of defections by assorted members of the so-called liberal wing.

Think about it: The court’s liberals voted to find a ministerial exception to employment discrimination laws for religious schools and churches; ruled against the EPA in a wetlands case; and, as Adam Liptak points out, the court’s liberals pretty much crushed the Obama administration again this term. Yet you don’t find liberals burning their Stephen Breyer Pokémon cards,  in part because liberals don’t have Stephen Breyer Pokémon cards in the first place. We can’t really be bothered.


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  • Robin

    Lithwick’s analysis ignores the fact that Kagan’s defection was largely inconsequential. Who cares if she defected if the “liberal position” was already a loser. The reason the right has gotten riled up about O’Connor, Kennedy, and now Roberts is that they were the swing vote on cases.

    Imagine the following scenario: the libs succeed in getting Chief Justice Roberts to side with them on the health-care mandate, but then Kagan flip flops and sides with Alito et al., do you think liberals would still be nonchalant about Kagan’s defection? Defections don’t matter if you were going to lose anyway, so the only defections that get noticed are the ones involving swing votes, or the ones where a justice blatantly switches political sides consistently…if Ginsburg and Scalia voted together 95% of the time one of them would be torched for abandoning the legal principles and views that got them their seats.

  • Tim

    “Yet you don’t find liberals burning their Stephen Breyer Pokémon cards”

    Best line I’ve read in quite some time.

  • First of all, there are strong “liberal” arguments for the decisions the “liberal” judges made. Second of all, what should be seen in this is the fact that liberals are not radicals in the way that so many conservatives are these days. This decade may well be to conservatism what the late 60s/early 70s were to libearlism—a time when they go off the rails into a radicalism that is dismissive of the need for compromise and frightening to the center of American life. The reaction to Roberts is a clear example of this radicalization, and the mellow reaction of liberals to supposed “treason” to their cause is a sign that liberals are today closer to the “vital center” of American life than are conservatives (generally speaking).