Rosen on Roberts

Jeffrey Rosen has an interesting article in The New Republic, Roberts Versus Roberts, Just how radical is the chief justice?

"Some of Roberts’s liberal colleagues have suggested that Roberts is a very nice man but that he doesn’t listen to opposing arguments and can’t be persuaded to change his mind in controversial cases. If so, he may have thought he could produce a unanimous court by convincing liberals to come around to his side, rather than by meeting them halfway. In the most revealing passage in his concurrence in Citizens United, he wrote that ‘we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.’ But the great practitioners of judicial restraint had a very different perspective. ‘A Constitution is not intended to embody a particular economic theory,’ Oliver Wendell Holmes wrote in his most famous dissent, in Lochner v. New York. ‘It is made for people of fundamentally differing views.’ Holmes always deferred to the president and Congress in the face of uncertainty. He would never have presumed that he knew the ‘right’ answer in a case where people of good faith could plausibly disagree."