Linda Greenhouse on the Supreme Court and the law.
History may someday settle on one of the competing and contradictory narratives now running rampant within the virtual Beltway to explain the decision by Chief Justice John G. Roberts Jr. to save the Affordable Care Act. Since that day seems far off, here in quick summary are the emerging story lines.
In “a singular act of courage,” Chief Justice Roberts took a bullet for the country, Jeffrey Toobin suggests in a New Yorker article that describes the chief justice’s entering the courtroom on the morning of June 28 with eyes “red-rimmed and downcast.” (Was he suffering from the seasonal allergies that plague everyone else in Washington?) Chief Justice Roberts thus exemplifies the “virtue of compromise in an era of Occupiers, Tea Partiers and litmus-testing special interests,” according to David Von Drehle’s admiring Time magazine cover story.
On the other hand, the chief justice is a cynical manipulator who “wanted to maintain the Supreme Court as a playpen for anti-government sophistry” while avoiding trashing up the court altogether, Timothy Noah claims in The New Republic. Can it be that he is fooling us all because “we’ve never really gotten over our collective crush on John Roberts,” an affection both “silly and undeserved,” as Jeff Shesol maintains on Slate?
Worse yet, the chief justice is a traitorous turncoat and a weakling to boot, unable to withstand liberal “bullying,” the improvident choice by a feckless president for the Supreme Court’s center chair, as James Taranto asserts in The Wall Street Journal under the headline “We Blame George W. Bush.”
I can’t remember a time when ScotusWorld (my name for the community of those who hang on the Supreme Court’s every word, “Scotus” being a widely used acronym for “Supreme Court of the United States”) was so fixated on a single justice’s single vote. Chief Justice William H. Rehnquist disappointed his conservative allies from time to time, provoking howls of outrage from Justice Antonin Scalia, for example, when he agreed with Justice Ruth Bader Ginsburg in 1996 that the Virginia Military Institute’s exclusion of women was unconstitutional and again in 2000 when he wrote an opinion for the court reaffirming the Miranda ruling ].
These were major constitutional disputes of their day, with Chief Justice Rehnquist’s votes coming as near total surprises, and yet the denizens of ScotusWorld basically shrugged and moved on. Perhaps the right saw the old chief as so reliable that he could be forgiven a liberal vote every decade or so, while the left, for its part, knew better than to regard these occasional aberrations as the harbingers of a new Rehnquist. And of course, at the end of the day, these big-deal cases were just cases. They lacked the dramatic potential of a confrontation between a president and a chief justice, two Harvard Law School-trained avatars of a generation, defined at least until now by their differences rather than by their common gifts of intellect and ambition. With that delicious plot spoiled, there’s understandable hunger to know what happened.
At least, hunger within ScotusWorld (which includes readers of this column). Polls conducted in the aftermath of the health care decision have received attention for revealing the public’s fickleness toward the court. A Gallup Poll from mid-July shows that while last September, half of all Republicans approved of “the way the Supreme Court is handling its job,” only 29 percent approve today. Last September, 46 percent of Democrats approved of the court (little different from the Republican approval rate), while now 68 percent do. Only among self-described independents was there no significant change: 44 percent approved of the court last September, and 42 percent approve today.
On reflection, these figures are not as startling as they seem. Nathaniel Persily, a law professor at Columbia with expertise in polling and public opinion, shared with me an unpublished article in which he makes the point that few people know much about the Supreme Court and very few ever read a Supreme Court opinion. Rather, they take their cues about the court from opinion leaders they trust.
So it’s not far-fetched to assume that in our polarized and supersaturated media environment, Republicans exposed themselves for the past two years to a drumbeat of criticism of the Affordable Care Act and to the fervent desire on the part of people they respect for the Supreme Court to strike it down. For Democrats, of course, the opposite occurred: Rachel Maddow instead of Rush Limbaugh. Perhaps independents listened to both, or neither. Or possibly these folks had not invested their own identity with a particular view of the matter. Their view of the law, in other words, was a matter of judgment rather than self-definition. Or maybe the independents simply tuned out altogether, not caring enough about the decision to let it change their minds one way or another about the worthiness of the Supreme Court.
What I found most surprising – truly startling – about the recent Gallup poll was what it showed about public attitudes toward Chief Justice Roberts. Again, the poll showed wide swings among Republican and Democratic views of the chief justice: from 67 percent favorable among Republicans a year ago all the way down to 27 percent today, and among Democrats, from 35 percent favorable up to 54 percent. (Independents showed a smaller swing, in the negative direction, from 47 percent favorable down to 38 percent.)
Nothing too surprising there, but what jumps out from the poll result is the large number of people in all categories who, barely two weeks after the decision, either “never heard of” Chief Justice Roberts or had no opinion of his performance: 31 percent of all adults; 30 percent of Republicans; 27 percent of Democrats; and 34 percent of independents.
Can this be possible? Is there really such a disconnect between those of us living in ScotusWorld and the great majority outside, who have myriad other concerns and who don’t really care whether the chief justice changed his vote at the last minute, or whether he vacations on an “impregnable island fortress” or the Jersey Shore?
Totally typical, Professor Persily assures me, reminding me of a Pew Research Center poll two years ago, when the Supreme Court was prominently in the news because of the retirement of Justice John Paul Stevens and the Senate confirmation hearing for Elena Kagan. Asked to choose the current chief justice from among four names, most said they didn’t know and barely a quarter of the respondents chose John Roberts. The others split their guesses among Justice Stevens, in the news for having retired; Thurgood Marshall, dead at that point for more than 17 years; and Harry Reid, the Senate majority leader. Two years later, the much ballyhooed Supreme Court case of the century has been decided, and nothing much has changed in terms of public understanding of the court.
It seems to me that this situation presents Chief Justice Roberts with both a challenge and an opportunity. We know that overall public support for the Supreme Court has dropped sharply – along with support for all government institutions – in the last few years. Political scientists tell us that “Americans who have a better understanding of how the court operates within the political system and those who pay attention to its decisions are much more likely than others to hold the court in high esteem,” as Gregory A. Caldeira and Kevin T. McGuire put it in their chapter of “The Judicial Branch,” a volume of essays published in 2005.
Suppose that instead of spending his summer holed up on the island of Malta (see “impregnable island fortress,” above) and at his vacation home off the coast of Maine, Chief Justice Roberts undertook some outreach to explain the court to the public. Justice Scalia is taking to the airwaves this summer to promote his co-written book about techniques of legal decision making, and Justice Stephen G. Breyer has been crisscrossing the country for the last few years talking about his own view of the court’s role. Justice Stevens is clearly reveling in his unrestrained retirement, giving punchy and quotable speeches and even writing on legal subjects for The New York Review of Books.
John Roberts has great television presence: who could forget his masterful confirmation hearing in 2005? And he surely has something to say now – not, obviously, about the health care ruling or any particular case, but about the court he has known intimately since his days as a law clerk. Producers and news directors would clear their calendars for him. What do people need to know about the Supreme Court? Why should they care? Everyone in ScotusWorld is busy telling the chief justice’s story. Let him share the court’s story with the rest of us.