Today, the fundamental divisions in American society are not regional or religious but ideological. Roberts, Scalia, Kennedy, Thomas and Alito were not appointed because they were Catholic but because they are conservative. The base of the Republican Party -- from James Dobson and Jay Sekulow among the evangelicals to Ted Olson and Leonard Leo among the Federalists -- recognized that they could use their influence to shape the Court. They organized more, mobilized more, and cared more about the Court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more -- a pair of justices who were precisely to their liking (and the ejection of one nominee, Harriet Miers, who was not). With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country.
In public at least, Roberts himself purports to have a different view of the Court than his conservative sponsors. "Judges are like umpires," he said at his confirmation hearing. "Umpires don't make the rules; they apply them." Elsewhere, Roberts has often said, "Judges are not politicians." None of this is true. Supreme Court justices are nothing at all like baseball umpires. It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship, is akin to performing the rote, almost mindless task of calling balls and strikes. When it comes to the core of the Court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor, has written, "It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly." Constitutional cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."
p 338, The Nine by Jeffrey Toobin
