What John Roberts and Ben Bernanke Really Have in Common

I agree, but when Tyler mentions their “understanding of limited institutional and moral capital” I think what he means is that they think they’ll have more bargaining power later if they give in a bit now; at least that might be what they tell themselves, anyway.

Mrs. Davis,

How? There is one establishment in two parties. Changing the party in control changes nothing. Obama is following Bush policies, Bush followed Clinton policies, Clinton followed….

I agree that a degree of political astuteness is both necessary, functional, and desirable in such leadership positions, but then how do you explain the radical right that were not, or do you suppose that getting along with the rest of the right alone was sufficient since getting along isn’t high on their list of priorities, or is high but only internally to their group? Do you suppose that signaling their group allegiance was more important than obtaining results? You can call that courage of their convictions if their convictions are those of group allegiance if you prefer.

The true “switch in time that saved nine” wasn’t the Court’s maneuvering that defeated FDR’s court packing plan in his second term. It was the Justices folding their tents and raising the white flag years earlier in the Gold Clause Cases to let FDR pay off US gold-denominated debt not with gold as the bond terms specifically stated but with inflated paper money, an act he took right after taking office.

This was plainly illegal and wrong and the Justices were sick about it. In private some said they would never buy US bonds again, even the liberals like Brandeis hated it.

They easily — with their security of lifetime tenure and judicial duty to do the right thing — could have drawn a line in the sand and said “No!”

But FDR expected them to do that and had written up a nationwide radio address he was going to deliver when they did. (The script of it still exists.) In this he announced that taking the actions needed to cure the national emergency was too important to let the Court stand in the way, and he was going to defy it. He was going to steamroller the Court, and there is no doubt he’d have succeeded with his and the Democrats’ immense political dominance of the moment. The Justices knew about FDR’s speech and what would happen to them after it.

This was *much worse* than FDR’s later packing plan which would have influenced opinions — this was outright defiance of the court, ignoring it, on Depression-related legislation, making it irrelevant.

The Democrats had just won their mega-landslide in 1932, after years out of power, and they were extremely ambitious, populist and aggressive. It was the precedent they wanted. If FDR had steamrollered the Court they’d have gone hog wild. Court ignored once when it supposedly struck down a law, court ignored many times over. What was going to stop them?

Remember, the Supreme Court has zero power of its own, that’s all with the executive and Congress. It’s not elected, so it can’t claim to represent anybody. It’s only source of influence is its political credibility with the populace. That could have been wiped out right then.

So the constitutional power of the Court could and likely would have been crippled or destroyed if they had drawn that line and said “No!” The Justices knew it, so they caved on the issue to save the institution. (They produced fractured opinions in which a majority used the words “default” and “debt repudiation” to describe what was going on, but no five did in any one opinion, while CJ Hughes wrote a majority holding that was a marvel of obfuscation concluding that while there was a wrong there was no remedy so it had to be permitted.)

The Court survived intact and went on to strike down New Deal legislation such as most notably major parts of the National Industrial Recovery Act, for which FDR himself privately gave thanks. Then it survived the famous packing attempt.

The moral of this story is that sometimes it really is best to give up on an issue of principle, on what one knows is right, to survive and live to fight another day.

Chief Justice Hughes was a skilled and influential politician, former governor of New York, Secretary of State, and the Republican presidential candidate who narrowly lost to Wilson. He used those political skills to really save the Court’s bacon during those years.

Chief Justice Roberts I fear spent the last few weeks imagining he was having a CJ Hughes moment, without Hughes’ political judgment and skill.

Roberts’ court faced no existential threat. While he strove to keep it out of a big political fight, he’s likely just achieved the opposite. By showing that the Court (or at least *he*, the CJ) can be turned, will actually reverse, on a critical issue under the heat of political pressure, lobbying, partisan op-eds, he’s likely multiplied the political pressure and threats that all sides will throw at the Court for years to come — increasingly politicized it and weakened its credibility.

A new poll out yesterday says the number of people who think the Court is doing a poor job rose to 28% from 17% over the last week, up 11% since the decision.

I think the simple answer is that John Roberts is just kind of liberal.

People assumed he was conservative because he had worked in conservative administrations. But he hadn’t been a judge before, so his conservatism was mere speculation.

If you look at his pro-bono work (gay causes, affirmative action), he opted for left-wing work.