In my recent TPM piece, I wrote:

In a recent article in the Weekly Standard, Professors Randy Barnett and Josh Blackman urge the next Republican President to appoint Justices, like Thomas, who care little about judicial restraint or respect for precedent. Senator Ted Cruz, while running for president, has severely criticized Chief Justice Roberts as insufficiently conservative, calling for the appointment of even more extremely conservative judges.

Indeed, there is much further room to move to the right. Some strict textualists do not agree with Justice Scalia’s exception for interpretations of statutes which lead to absurd results. Let the chips fall where they may, they say, and either Congress will fix the problem with an apparently absurdly written statute or it won’t. It’s not the Court’s problem.

And here’s Linda Greenhouse’s NYT column today:

In a variation of that theme, the columnist George Will, in a piece that went viral in the conservative blogosphere during midsummer, castigated Chief Justice Roberts for, of all things, his dissenting opinion in the same-sex marriage case. It was not that Mr. Will, often a reliable barometer of inside-the-Beltway conservative thought, had suddenly embraced marriage equality. Rather, he objected to what it was the chief justice was objecting to in Justice Kennedy’s majority opinion.

In his dissenting opinion, Chief Justice Roberts accused the majority of reanimating the spirit of the long-discredited Lochner v. New York, a 1905 decision in which a conservative Supreme Court invoked a supposed “liberty of contract” to invalidate workplace regulations. It was a later conservative court that was still under Lochner’s sway when it struck down much New Deal legislation in the early 1930s.

The case stands for “the unprincipled tradition of judicial policy making,” Chief Justice Roberts said in his dissent; only when a later court understood Lochner’s error did justices return to their properly restrained role. “The majority today neglects that restrained conception of the judicial role,” he wrote.

In his column, Mr. Will said the chief justice’s account of Lochner contained “more animus than understanding.” Lochner should be celebrated, he wrote. The 1905 decision “was not ‘unprincipled’ unless the natural rights tradition (including the Declaration of Independence) and the Ninth Amendment (‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’) involve no principles.”

The Ninth Amendment? The amendment that constitutional progressives have viewed as the source of the “unenumerated rights” much disparaged by conservatives? The Ninth Amendment that Robert Bork likened to an ink blot on the Constitution? Indeed, Mr. Will wrote: “The next Republican president should ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments’ affirmation of unenumerated rights?”

Not very long ago, a potential nominee who was prepared to answer “yes” to those questions wouldn’t have made it past the security checkpoint of a Republican White House. The young John Roberts worked in the modern era’s ur-Republican White House, Ronald Reagan’s, when such an answer would have been apostasy. That was then.

I’m writing about such obscure subjects as Lochner and unenumerated rights in full understanding that the new conservative memes may be just so much window dressing on a more fundamental, less elevated explanation for the conservative anger. I never thought I would be quoting Senator Ted Cruz with anything close to appreciation, but here goes. Heaven knows there wasn’t much honesty in the Republican debate, but the Texas senator said something during his rant about Chief Justice Roberts that might actually, even if inadvertently, have come close. “You know,” Senator Cruz said, “we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.”