New liberal nightmare a lot like … old liberal nightmare

posted at 2:01 pm on July 3, 2012 by Ed Morrissey

Old and busted: John Roberts will lead the Supreme Court as an overtly radical conservative that will shred stare decisis and impose historic limitations on federal power!  New hotness: John Roberts has upheld ObamaCare and had the lowest level of reversals on precedent in the last 60 years … in order to lead the Supreme Court as a covertly radical conservative that will shred stare decisis and impose historic limitations on federal power!

It’s impossible to keep up with all of the conspiracy theories stemming from Thursday’s decision, I tell you:

Liberals who celebrated the Supreme Court’s decision on health care may be nursing an ugly hangover after the justices dive back into their work this fall, with a docket likely to be loaded with controversial cases.

And left-leaning courtwatchers are already worried about the jurist who brought them such relief last week: Chief Justice John Roberts.

Some liberals contend that Roberts’s surprise crossover on the health care law has given him a free hand to craft and sign onto a slew of conservative opinions next year without suffering much of a public drubbing from Democrats and the press. With one major case, Roberts may have inoculated himself and the court against charges of partisanship.

The chief will have plenty of chances to make his mark in the next term. Already, the justices are planning to delve into the politically charged issue of affirmative action. They may well add hot-button disputes over same-sex marriage rights and voter ID laws. And the court could even take up the constitutionality of the landmark law Congress passed nearly half a century ago to guarantee African-Americans equal access to the polls: the Voting Rights Act.

Some of this is probably just leftover pre-ObamaCare-decision hysteria with no place else to go.  Thanks to commentators like Jeffrey Toobin, James Fallows, and Politico’s Roger Simon, the Left still has an image of Roberts as an unthinking radical, unmoored from precedent and unmoved by the deference due to the legislative branch.  Gabriel Malor destroyed that meme the very morning that the decision was published:

Here’s the data on the first five years of the Roberts Court (gleaned from this NYTimes infographic):

(1) The Warren, Burger, and Rehnquist Courts overturned precedent decisions at an average rate of 2.7, 2.8 and 2.4 per term, respectively. By contrast, the Roberts Court overturned precedent only at an average rate of 1.6 per term.(2) The Warren, Burger, and Rehnquist Courts overturned laws at an average rate of 7.9, 12.5, and 6.2 laws per term. By contrast, the Roberts Court struck down laws only 3 laws per term.

Just three laws per term! Far, far from being “eager” to overturn legislatures, as hack Toobin dribbled, and obviously, indisputably playing no unusual role in “second-guessing laws,” as Fallows alarmingly squeaked, the Roberts Court has been a model of restraint. Restraint is, naturally, one of Chief Justice Roberts’ well-known characteristics and it was remarked upon during his confirmation hearings. One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era. (I assure you, these numbers have not changed appreciably in the past two years.)

It’s unlikely, therefore, that Roberts will shift away from the incrementalist approach that has characterized the first seven years of his term as Chief Justice, and which certainly characterized his most famous (or notorious, depending on your point of view) opinion to date.  But it’s revealing that the fear of Roberts doing so has arisen almost within hours of his court handing liberals their biggest victory in years, and it shows just how insecure they become at just the hint that they might lose the judiciary as a means to pursue policy.


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