by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Garrett Snedeker, assistant director of the James Wilson Institute on Natural Rights and the American Founding, explains to readers of The Federalist why they should be concerned about recent praise aimed at Chief Justice John Roberts.
The praise in conservative legal circles for the dissenting opinion of Chief Justice John Roberts in the marriage case has been nothing short of effusive. Ed Whelan of the Ethics and Public Policy Center described it as “excellent,” and Matthew Franck of the Witherspoon Institute praised it. However, in Progressive legal circles we also find the chief’s dissent warmly received. That unusual occurrence should make conservatives raise their antennae.
In a recent long article, Ian Millhiser of ThinkProgress offers his analysis of the chief’s dissent. At first, he soothes the fevered brains of his Progressive readers who might think the chief is just as hopeless a case as the conservative trio of justices Scalia, Thomas, and Alito on same-sex marriage as a policy matter. Millhiser calmly explains that the chief’s principal objection to the majority opinion is on the structure of the argument, not on whether he supports same-sex marriage.
“Roberts’s Obergefell dissent is, at its heart, an attack on the method Justice Anthony Kennedy used to reach the majority’s conclusion that the Constitution forbids states from denying equal marriage rights to same-sex couples,” he writes. There’s a particular reason for Millhiser to focus on form, not substance. Millhiser seeks not to disparage the chief, but rather to heap appreciation on his reasoning, all because Millhiser has his eyes set on a much larger bugaboo than one justice of the Supreme Court: the vast right-wing legal conspiracy.
More accurately, Millhiser seeks to cast shame upon a currently small subset of the “vast right-wing legal conspiracy” that may be united in admiration for the reasoning in the famous, if controversial, case of Lochner v. New York (1905). The chief cites Lochner in a disparaging fashion no less than 16 times in his dissent, using adjectives such as “discredited” and “unprincipled.” Thus, Lochner makes strange bedfellows out of Millhiser and many conservative legal scholars.