WASHINGTON -- The Simpsons on unpredictable judges:
Marge: "Do you want your son to become chief justice of the Supreme Court, or a sleazy male stripper?"
Homer: "Can't he be both, like the late Earl Warren?"
Marge: "Earl Warren wasn't a stripper!"
Homer: "Now who's being nave."
Warren's actual vices tended more toward the ideological. Dwight Eisenhower came to regret the liberal activism of his choice for the Supreme Court, calling it the "biggest damned-fool mistake I ever made." Other presidents must also have been frustrated by their selections on the far side of life tenure -- Ronald Reagan's appointment of Sandra Day O'Connor or George H.W. Bush's elevation of David Souter come to mind. Now Chief Justice John Roberts unexpectedly joins the list.
There is little evidence that Roberts is entering a midlife ideological crisis. But his health care ruling did expose a division between two varieties of judicial conservatism -- institutionalism and constitutionalism -- that can lead to very different outcomes.
Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly -- deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism -- a commitment to continuity, humility and prudence.
The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet only turns leftward.
My natural sympathies are with institutionalism as an antidote to judicial arrogance. Donning a black robe does not assume or create a superior knowledge of public policy. Roberts' desire to defer, particularly on a divisive issue in the middle of a presidential election, is the right tendency, the correct Burkean instinct.
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