Perhaps unsurprisingly, George W. Bush’s legacy remains a disappointment?
Interestingly, the two remaining Reagan appointees dissented, while Bush appointee Chief Justice John Roberts voted ObamaCare’s individual mandate. This, of course, has sparked a backlash from many conservatives, with Brent Bozell even telling me Roberts “will be seen as a traitor to his philosophy.”
Almost everyone agrees that, in the short term, this helps Romney. But I also think there is an interesting, if depressing, message for conservatives.
Movement conservatives saw the Supreme Court in 1973 invent the notion that a right to privacy makes abortion legal. They then watched Republicans appoint “stealth nominees” who, once confirmed to the high court, eschewed originalism in favor of judicial activism. Then, they witnessed Robert Bork treated so harshly that such Congressional treatment of nominees became named in his honor– and the subsequent attempt to Bork Clarence Thomas.
This leftist tilt, of course, was incredibly frustrating to those who worked hard to elect conservative leaders, only to see their goals overturned — often by the very judges they had appointed.
And so, conservatives began the long and arduous process of creating an infrastructure to identify and support young lawyers with a conservative judicial philosophy. This included creating organizations like the Federalist Society (founded in 1982), and later, groups like the Judicial Crisis Network — all loosely designed to provide resources, networking, and intellectual support — in an effort to ultimately ensure more judges who believe in a strict interpretation of the Constitution would be appointed and confirmed to the court.
The appointment of John Roberts was generally viewed as a triumph of this mission (here he is congratulating the Federalist Society on their 25th anniversary.) Romney might be champing at the bit, hoping to turn this anger and enthusiasm into a victory on election day. But movement conservatives who care about judicial philosophy have to be incredibly frustrated.
After all, if John Roberts can decide the federal government has the right to require citizens to purchase health insurance (even if it’s called a “tax”) — how can they ever trust anyone to strictly adhere to the Constitution?