Dahlia Lithwick, Slate’s terrific reporter and commentator on matters of law, writes about the same phenomenon I’ve described many times, conservatives who argue against judicial review while pretending to argue only against a specific ruling by the Supreme Court.
I mention this because one striking commonality in most of the dissents Friday is that weird vein of professional judicial self-loathing the dissenters choose to mine when they really want to go for the jugular. Whether it’s the chief justice’s jarring “Just who do we think we are?” to Scalia’s odd discursion on the lack of evangelical justices orreal Westerners on the Supreme Court. (“Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner [California does not count]. Not a single evangelical Christian [a group that composes about one-quarter of Americans], or even a Protestant of any denomination.”) Scalia is just dripping with contempt for this “select, patrician, highly unrepresentative panel of nine.” He takes a whack at his colleagues—and, I guess, himself—for separate and concurring opinions loaded with “silly extravagances.” He invites his readers to feel as impotent in the face of this judicial tyranny as he feels.
Thomas also rails at the fact that a “bare majority of this court” is able to “grant this wish, wiping out with the stroke of a keyboard the results of the political process in over 30 states.” And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”
Recall back at oral argument when Elena Kagan said, “We don’t live in a pure democracy, we live in a constitutional democracy.” Isn’t that the answer to the dissenters’ political process questions? Or is that only the answer on campaign finance reform?
It reminds me very much of how Republicans suddenly discover the timeless virtue of fiscal responsibility at the precise moment that a Democrat is elected president. When a Republican president is in office, they will support all manner of irresponsible fiscal policies. They’ll start wars and cut taxes at the same time, leading to trillions of dollars in debt to be paid off, with interest, by the next generation. The moment a Democrat is in office, though, they will demand that a few billion dollars of spending be offset by cuts elsewhere in the budget, especially if the spending is for anything that might actually help people. Billion wise and trillion foolish, so to speak.
Conservative justices are all for “judicial activism” (here I use the only coherent meaning of that phrase, defined as a court that is active in overturning laws passed by Congress) when they disagree with a law that has been passed. When they agree with a law being challenged, they suddenly, almost magically, discover the virtues of judicial minimalism and they are shocked — shocked! — at their more liberal colleagues’ obviously profligate abuse of power. How convenient for them.