Part 7 of the series, "The Structure of Lies in Conservative Jurisprudence".
While Roberts' umpire metaphor was clearly a lie, as I argued in my previous post, there was something deeper and more insidious going on, a broader claim of judicial minimalism, modesty and restraint, which actually represented the very opposite of what it promised. Instead of turning back from the increasing extremism of conservative jurisprudence under the rubric of false principles such as “strict construction” and “original intent”, Roberts advanced conservative jurisprudence into a realm of outright lawlessness. This was not entirely new territory, given the utter lawlessness of Bush v. Gore in 2000, but that decision was clearly anomalous. It even declared itself unfit for citing as future precedent—which was a crucial part of its very lawlessness.
The Roberts Court has begun the process of normalizing lawlessness—seen most blatantly in Citizens United, and most recently in Shelby County v. Holder. To understand how and why this is so, we turn to the analysis of pre-eminent legal scholar Ronald Dworkin in the New York Review of Books, ““Judge Roberts on Trial”, written after the conclusion of the confirmation hearings.
Dworkin first notes that, “Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts,” but that he promised not to “use his great power on the Supreme Court in the service of his politics” and that the Senate Judiciary Committee had “failed dramatically in its responsibility” to test that promise.