Robert’s Fine Whine


I’m a bit late to the party, but for the record John Roberts whining that it’s somehow “very troubling” for the President to criticize a 5-4 decision of the Supreme Court is absurd. Obviously Roberts and the other judges on the majority knew when they issued their opinion that it was going to be controversial—that’s why they could only get five votes. They knew, moreover, that the particular 5-4 split their decision was going to provoke was the family left-right division on the Court. Had John Kerry won the 2004 election, the decision would have gone the other way.

Clearly the court’s right-wing is entitled to make 5-4 rulings that make progressives, including the President of the United States, angry. They have the votes. But the price of issuing those kind of rulings, is that they get criticized.

One reason why Chief Justices sometimes strive extra-hard to produce moderate rulings that can secure overwhelming majorities is precisely because they sometimes try to avoid this kind of situation. But Roberts is comfortable with issuing narrow, partisan opinions on the basis of a narrow 5-4 majority, just as his predecessor was. Which is fine if that’s how he wants to play it. But people are going to be mad! They’ll say mean things about him! That’s life.