DownWithTyranny!: Is Chief Justice "Smirkin' John" Roberts smiling quite so much now in his hideout following his skin-of-his-teeth escape from D.C.?

"I mean, what would you do if you were Roberts? All of a sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to reexamine your position."

-- 7th Circuit Appeals Court Judge Richard A. Posner, in an NPR interview with Nina Totenberg, quoted by Linda Greenhouse

by Ken

For a while now I've been contemplating the poignant image, or non-image, of poor Chief Justice "Smirkin' John" Roberts sneaking out of D.C. in the dead of night, one step ahead of the gathered lynch mob, going to ground in some impregnable.

What I like best about it is the glimpse he got of the social revolution he's played such a large role in bringing about: the New American Order of the vast hordes of cretinized thugs huddled panting at the toes of the .01% elites they've been enlisted to fluff. Here was the chief thinking he would always be safely ensconced in the owners' box smirking at the smelly, unwashed masses. And now suddenly here he is in the crosshairs of the very Right-Wing Noise Machine that has treated him with such reverence.

The spectacle of Christians vs. lions may not be entirely as entertaining when you find yourself, not merrily cheering the lions on, but down in the arena among the Christians. I like to think that possibly, facing the crazed wrath of the far right-wing pundits whose brains have rocketed off to somewhere in deep space, the chief finds them a mite less amusing.

I know there has been speculation that the smirkin' chief was always going to vote to uphold the Affordable Care Act out of his solidary with the financial elites whose rarified ranks include the insurance-industry giants who stand to be the recipients of those new premiums due to flow in once the ACA finally kicks in. This has seemed to me to reflect an understanding very different from my own as to what motivates people in general and Supreme Court justices in particular.

WE KNOW NOWTHAT SMIRKIN' JOHN DID
AN 11TH-HOUR SWTICHEROO ON THE ACA

But we know now -- thanks to the really remarkable, barely if it all precedented behind-the-scenes revelations about how the ACA decision was arrived at (see, for example, NY Mag's Margaret Hartmann's "Roberts Changed His Health Care Vote, Was Shunned by Other Justices") -- that this view of the chief justice's motivations was wrong on the facts. He was, we've learned, set to vote with his normal 5-4 bloc to strike down the individual mandate at the heart of the law. It turns out that all the reasoning he developed as to why the Commerce Clause isn't grounds for upholding the mandate, which found its way into his controlling "majority of one" opinion upholding most of ACA, was originally intended to buttress the High Court's takedown of the heart of the law.

Except something happened. We still don't know what, but naturally the crazed demagogues of the Far Right have decided it was politics. Somehow the chief, who has certainly never before shown any shyness in the face of political heat from his left, was suddenly reduced to a quivering gelatinous blob. Poor guy apparently just couldn't take the heat.

Huh???

Now the NYT's longtime High Court-watcher, Linda Greenhouse, has advanced a theory, in her latest biweekly "Opinionator" blog column, "The Mystery of John Roberts."

Greenhouse first harks back to an outwardly similar instance of High Court late-stage mind-changing, in 1991-92, when still relative newbie Justice Anthony Kennedy (who, Greenhouse reminds us, is what the nation got saddled with -- my characterization, not hers -- in the aftermath of the First Borking, of the actual Bork itself, in 1987) was assigned by Chief Justice William Rehnquist to write the 5-4 majority opinion that would allow a prayer to be recited by a clergyman at a public high school graduation, and in the course of setting out the legal reasoning decided that it pointed in the other direction. He sent a note explaining his change of legal heart to Justice Harry Blackmun, who had been the ranking justice on the minority side and would now become the ranking justice on the majority, and therefore responsible for assigning the opinion. Greenhouse writes: "He told Justice Kennedy to keep writing."

Greenhouse reminds us of just what a furor the Anthony-authored Lee vs. Weisman ruling prohibiting graduation prayers created. Naturally conservatives were apoplectic. But they didn't make any effort, as they're doing know, to torch the Court. Despite occasional rumors of an Anthony switcheroo, the facts weren't even known until they slipped out of Justice Blackmun's papers when they reached the Library of Congress in 2001.

After making clear that she doesn't subscribe to a single-reason theory for Chief Justice Roberts's switcheroo, she proceeds to "suggest one," which I'm afraid I've tipped off by putting the quote from Judge Richard Posner (whom she calls "one of my favorite judges"; he's always seemed to me a really smart, smug slimebag), which she places at the end, at the top of this post. The factor she wants to call attention to is "the breathtaking radicalism of the other four conservative justices."

The opinion pointedly signed individually by Justices Kennedy, Thomas, Antonin Scalia and Samuel A. Alito Jr. would have invalidated the entire Affordable Care Act, finding no one part of it severable from the rest. This astonishing act of judicial activism has received insufficient attention, because it ultimately didn't happen, but it surely got the chief justice's attention as a warning that his ostensible allies were about to drive the Supreme Court over the cliff and into the abyss.

HAS THERE REALLY BEEN A "LIBERAL LOVE
AFFAIR" WITH "SLOW ANTHONY" KENNEDY?

At the end of the above paragraph devoted to "the breathtaking radicalism of the other four conservative justices" in their ACA opinion, Greenhouse tacks on, in parentheses:

Extraneous question: Is the liberal love affair with Anthony Kennedy -- which should have ended five years ago with his preposterously patronizing opinion in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003 and suggesting that women are incapable of acting in their own best interests -- finally over?

"Finally over"? When did it begin? Does anyone else recall a "liberal love affair" with Slow Anthony? I do recall myself voicing the far-from-confident hope, upon the swap-out Sammy "The Hammer" Alito for the retired "swing"-voting Sandra Day O'Connor, that Justice Kennedy's emergence as the new swing man might nudge him leftward into a role more like Justice O'Connor's, as he contemplated the likely lineup of horrors on the Court's radical Right. That forlorn hope doesn't sound like much of a "love affair" to me, especially given how quickly Slow Anthony moved to dash it. Oh, there were issues on which the Roberts-Scalia-Thomas-Alito cabal couldn't drag him along, but they paled alongside the decisions in which the Slowman was quite happy to join ranks with the crazies

Ironically, it appears that it's not Slow Anthony but Smirkin' John who has blinked in the face of the present-day "conservative" justices' radicalism. Still, Greenhouse voices "strong doubts" that the chief is about to move into a "swing" role on the Court. She points out, as I have here, that "the man is conservative to his bones." It does appear, though, that --

fissures on the conservative side of the court may already be opening over how to approach next term's big cases on affirmative action (scrap it or confine it) and voting rights (declare the landmark Voting Rights Act obsolete, and therefore unconstitutional, or yield to the nearly unanimous vote by which Congress extended the law's Section Five for another 25 years). The first case is already on the court's docket, and the other is on its way, neither by happenstance. Both cases were created by conservative interest groups, primed and nurtured and pushed to the Supreme Court on the assumption that the moment for radical activism had finally arrived.

"The real question," Greenhouse suggests,