Conservative legal scholars may be having second thoughts of their earlier embrace of Chief Justice John Roberts as a jurist dedicated to the rule of law thanks in large part to last week’s arguments on the Affordable Care Act.
The Los Angeles Times ran a profile of several prominent legal scholars who were deeply troubled by the tone and apparent lack of regard for precedent displayed during the arguments. Harvard Law professor and President Reagan’s solicitor general Charles Fried, who originally testified in support of Roberts’ confirmation, is now speaking out about the decidedly political tone and direction of the court under Roberts’ leadership.
From the Los Angeles Times:
If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”
His comments highlight a growing divide between an earlier generation of judicial conservatives who stressed a small role for the courts in deciding national controversies and many of today’s conservative justices who are more inclined to rein in the government.
Fried had confidently predicted the law would be easily upheld. He said he was taken aback by the tone of the arguments. “The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans,” he said.
Like Fried, many legal scholars including myself believed the court would uphold the law since that is what hundreds of years of precedent mandates. But the arguments showed that at least some of the justices truly have little regard for precedent and instead see themselves as political actors. For Reagan’s former solicitor general to call the behavior inappropriate shows how off the tracks the court has gone under Roberts leadership.
Photo from kjetil_hr via flickr.