Chief Justice John G. Roberts Jr.’s decision to side with the court’s liberal bloc and uphold Obamacare raises an important question for conservatives: Why are Republicans so awful at picking Supreme Court justices? [...]What follows is a maudlin little exercise involving assertions that anyone to the left of Scalia and Thomas is liberal, that judicial activism is not related to upholding versus overturning laws but instead is a nebulous, spur-of-the-moment exercise in whatever Marc Thiessen says it is, blah-blah-freaking-blah, insert pity party here, and all bound together with a conspicuous lack of awareness—no, strike that, a siren-blasting, strobe-light-flashing, truly stupendous lack of awareness—on how the process of nominating Supreme Court justices may possibly have changed in some fashion since the time of nasty communist-in-hindsight Ronald Reagan, and how those changes have altered who is even considered for those roles, much less successfully appointed. Suffice it to say that Thiessen is quite miffed that liberals seem to get everything they want out of their court justices, while conservatives seem to be beset by turncoats and folks who sometimes write things conservatives don't like.
For starters, Mr. Thiessen, I might offer up the suggestion that if you consider liberal to be literally any justice or court opinion that does not fit with the farthest-right of conservative viewpoints, then yes, I will grant you that it is damn easy to find liberalism and liberals everywhere. You don't particularly have to notice nuances, much less full-throated differences of opinion and ideology, when the two choices are between Antonin Scalia and literally every other goddamn judge on the planet.
More to the point, however, I would suggest that if conservative justices tend to, let's say, suck, it might have something to do with a nomination and vetting process that judges their suitability based primarily on a narrow list of whichever conservative requirements are currently in vogue, and not according to whether they have, in the past, expressed consistent and erudite understandings of constitutional law. Thus, when put on the bench, they tend to issue rulings that are legally all over the damn place, according to their own personal preferences. Consistency is not a hallmark of conservative justices because they are not vetted for legal consistency, only ideological consistency, and what counts as "ideological consistency" tends to change according to circumstance—sometimes, rather rapidly.
It is not Chief Justice John Roberts' fault that he did not get the memo that government forcing people to hand over money to private insurance companies or pay a tax penalty for not doing so is now not a conservative idea, but a fount of liberalism and evil. When he was nominated, that idea was the conservative stance on healthcare. Hell, it was considered the "conservative" approach even by the likes of Newt Gingrich, and was eventually put into practice by none other than the severely conservative Mitt Romney. Choosing the devoutly corporatist approach would seem a perfectly reasonable conservative opinion, in any other circumstance but this one; you can forgive Roberts for being a bit flummoxed as to what is being expected of him.
It is true that the terribly serious constitutional scholar Antonin Scalia was able to divine the flip-flop necessary in order to best meet the current year's conservative fashions, but let's not pretend it was the result of some deep legal consistency on his part; Scalia himself had to very publicly admit to overturning one of his own past legal principles in order to reach the entirely opposite conclusion in this case. When you can't even respect your own precedents, now that's some serious legal activism.
So fine, Roberts is now getting plastered for ostentatious liberalism, and all because he didn't realize that conservatism dictates that even deeply conservative ideas are bad if there's a bit of partisan gain to be had in saying so. In every other case, he toed the conservative line, but this one was the important one, so now he's a pariah. Now he's even a liberal.
It demonstrates quite a few things, I think. It demonstrates how yesterday's conservatives can become tomorrow's supposed "liberals," in the eyes of the conservative movement. It demonstrates the flip-flopping required of conservative intellectuals in order to retain favor with a party for whom consistency is readily tossed aside according to whatever election-year needs might gain more advantage. It demonstrates the party requirement upon their judges, in particular, to behave in an ideologically rigid fashion rather than a constitutionally rigid one (states' rights continues to hold sway as the single most insipid and useless legal phrase in existence, based on the spectacularly arbitrary nature of its invocations—truly, the deus ex machina of conservative legal scholarship).
And it demonstrates that Village conservatism, of the kind practiced by the Washington Post editorial page, is truly a pathetic, self-pitying festival of whining and imagined outrages. Yes, Marc Thiessen, let us all gnash our teeth at this terrible ideological slight against all of conservatism, a movement which has never quite been able to figure out how to nominate judges that exhibit the requisite ideological consistency, even while scurrying to change those ideologies out from under them.