New York Times Supreme Court correspondent Adam Liptak filed a liberal pleasing analysis Tuesday, fervently insisting Chief Justice John Roberts is a staunch conservative, despite what ridiculous right-wingers may think. His reported opinion piece, based on voting analysis by law professors, strained to show Roberts as a loyal conservative Justice, but the evidence is hardly as cut and dried as Liptak's charged tone would suggest.
Liptak has always trended left, as when he faulted the "terse" old U.S. Constitution as outdated for failing to guarantee entitlements like health care. He has a particular weakness for forwarding the spin of liberal studies hostile toward conservatives, like an August attack on Justice Clarence Thomas suggesting his opinions relied too heavily on friend-of-the-court briefs, leaving the liberal impression that Thomas is not an original thinker.
Tuesday's "Sidebar" piece offered a provocative headline that baited "wrathful" right-wingers with another study that Liptak spins in a liberal direction: "Chief Justice Amasses a Conservative Record, and Wrath From the Right."
A decade ago, as President George W. Bush was about to appoint a Supreme Court justice, The Wall Street Journal’s editorial page pleaded with him to choose a reliable conservative. Republican presidents had made too many mistakes, it said, in appointing justices who turned out to be liberals.
“No More Souters,” the headline read, referring to Justice David H. Souter, who was appointed by the elder President George Bush in 1990 but soon started voting with the court’s liberal wing. The editorial listed other Republican appointees who had disappointed conservatives: Chief Justice Earl Warren and Justices William J. Brennan Jr., Harry A. Blackmun, John Paul Stevens and Anthony M. Kennedy.
Mr. Bush’s choice, Chief Justice John G. Roberts Jr., delighted the right. But now, 10 years later, some conservatives seem to be suffering from a belated and somewhat puzzling case of buyer’s remorse.
While Chief Justice John G. Roberts Jr. has displayed a reliably conservative voting pattern, a comparison of his votes with those of Justice Samuel A. Alito Jr., a fellow George W. Bush nominee, shows the two diverging, with Justice Alito trending right and Chief Justice Roberts, left.
This barrage of criticism is hard to reconcile with Chief Justice Roberts’s overall record, which is quite conservative.
Liptak's summary of some recent major cases betrayed a liberal slant:
He was in the majority in 5-to-4 decisions like Citizens United v. Federal Election Commission, which amplified the role of money in politics; Shelby County v. Holder, which destroyed the heart of the Voting Rights Act; and District of Columbia v. Heller, which identified an individual right to bear arms.
For proof of his premise, Liptak relied on that notably unideological organ, the ACLU:
When the court ruled in favor of same-sex marriage in June, again by a 5-to-4 vote, Chief Justice Roberts dissented. He summarized his dissent from the bench, a first for him and a move signaling profound disagreement.
And so the right’s case against the chief justice is thin, said Steven R. Shapiro, the legal director of the American Civil Liberties Union. “The reaction is almost entirely due to the two health care decisions,” he said, “and there is nothing else in his record that should be disappointing.”
Halfway through, Liptak finally slipped in the awkward counterfactual – Roberts has twice written the majority opinion in dubious decisions holding up Obamacare. But don't worry, a liberal group says, those decisions don't make the Chief Justice Roberts less than an "exceptionally conservative" Justice.
Those rulings were unpopular with the right, but they do not provide much evidence that Chief Justice Roberts has turned into a liberal, said Brianne Gorod, a lawyer with the Constitutional Accountability Center, a liberal group that has issued a series of reports assessing the chief justice’s decade on the court.
“It’s just a ridiculous claim,” Ms. Gorod said. “He has been exceptionally conservative throughout his entire 10 years. They just really dislike the way he voted in the A.C.A. cases.”
Hmm. Weren't those Obamacare exceptions pretty big exceptions? And they weren't the only ones, as we learn from Slate, of all places.
Liptak finally let his readers hear from the conservative group that aired an ad attacking Roberts during the last Republican presidential debate:
Carrie Severino, the chief counsel for the Judicial Crisis Network...[said Roberts'] health care opinions betrayed a “profoundly political” view of the law, she said. She added that he sometimes moved too slowly even when he was heading in the correct direction, pointing to a 2009 decision that put off deciding the fate of the Voting Rights Act.
Political scientists say the conservative critique has a little merit, but not much. An analysis of voting patterns over the last decade shows Chief Justice Roberts to be well to the right of Justices Kennedy and Souter.
Liptak cited the "more nuanced picture" taken by three law professors proving Roberts was in fact a rock-ribbed conservative:
They found that Chief Justice Roberts voted in a conservative direction 58 percent of the time over the last decade, while Justices Alito, Antonin Scalia and Clarence Thomas ranged from 61 to 65 percent.
But the chief justice leaned right when it mattered most. “He is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome,” the study said.
Except when dealing with that tiny little issue of Obamacare....
Not all media outlets agree with Liptak's verbally heated insistence that Roberts remains a reliable, down-the-line conservative. Slate, no one's idea of a right-wing outlet, recently agreed that Roberts had drifted leftward, under the headline "Why Is John Roberts Siding With the Supreme Court’s Liberals?" Adam Winkler wrote:
John Roberts has changed. Consider the chief justice’s voting record. From 2005 -- the year he was appointed -- until 2012 - -the year of the first Affordable Care Act decision -- Roberts was a reliable vote on the court’s staunch conservative wing....Lately, however, we’re seeing a very different Roberts. Last term Roberts surprised many by breaking left on a few major cases. And so far this term, Roberts has voted with Stephen Breyer (90 percent), Ruth Bader Ginsburg (85 percent), and Sonia Sotomayor (83 percent) more often than he has joined Thomas (66 percent), Kennedy (74 percent), and Alito (77 percent). And that isn’t just on minor cases. He’s recently sided with the liberals in cases on issues that typically divide the court along ideological lines, including campaign finance and anti-discrimination law.
And the Wall Street Journal summarized the Court's most recent term: "Chief Justice Roberts's Maneuvering Draws in Court's Liberal Bloc -- Supreme Court's Leader Joined Liberal Colleagues to Achieve Some Major Decisions This Term."