Published for The Washington Post, July 2nd, 2012
Marge: “Do you want your son to become chief justice of the Supreme Court, or a sleazy male stripper?”
Marge: “Earl Warren wasn’t a stripper!”
Homer: “Now who’s being naive?”
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.