FIRST ONE @ ONE FIRST

Jeff Rosen’s Must-Read on CJ Roberts

Posted in Law and Politics, Supreme Conflict by Mike Sacks on February 17, 2010

Take the time to read Jeff Rosen’s latest piece in The New Republic.  Here’s the money quote, as far as F1@1F is concerned:

And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision rejecting a broad constitutional challenge to the Voting Rights Act and instead deciding the case on technical grounds. For those who wanted to believe that Roberts was a genuine conciliator, this was a powerful piece of evidence. Like others, I praised his performance in the case as an act of judicial statesmanship.

But, in retrospect, the ruling may have been less statesmanlike than it appeared. According to a source who was briefed on the deliberations in the case, Anthony Kennedy was initially ready to join Roberts and the other conservatives in issuing a sweeping 5-4 decision, striking down the Voting Rights Act on constitutional grounds. But the four liberal justices threatened to write a strong dissent that would have accused the majority of misconstruing landmark precedents about congressional power. What happened next is unclear, but the most likely possibilities are either that Kennedy got cold feet or that Roberts backed down. The Voting Rights Act survived, but what looked from the outside like an act of judicial statesmanship by Roberts may have in fact been a strategic retreat. Moreover, rather than following the principled alternative suggested by David Souter at the oral argument–holding that the people who were challenging the Voting Rights Act had no standing to bring the lawsuit–Roberts opted to rewrite the statute in a way that Congress never intended. That way, Roberts was still able to express his constitutional doubts about the law-as well as his doubts about landmark Supreme Court precedents from the civil rights era, which he mischaracterized and seemed ready to overrule.

The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held–far more plausibly–in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint.

There is, of course, a charitable explanation for why Roberts took the conciliatory approach in one case but not the other: namely, that he felt the principles involved in Citizens United were somehow more important and therefore less amenable to compromise. As he told me in our 2006 interview, he has strong views that he, like his hero John Marshall, is not willing to bargain away. Marshall, Roberts said, “was not going to compromise his principles, and I don’t think there’s any example of his doing that in his jurisprudence.”

But a less charitable explanation for the difference between the two cases is that Roberts didn’t compromise on Citizens United because, this time, he simply didn’t have to.

Setting aside Rosen’s brief and remarkable peek into the NAMUDNO deliberations, this passage also has echoes of F1@1F’s main thesis: the Court is guided by a Chief Justice who picks his battles wisely, preserving the Court’s political capital only for the cases most near to movement conservatism’s heart.  Rosen takes this point, but wavers in conclusion:

It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory. Without being confident either way, I still hope that he has enough political savvy and historical perspective to recognize and avoid the shoals ahead. There’s little doubt, however, that the success or failure of his tenure will turn on his ability to align his promises of restraint with the reality of his performance. Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen wellintentioned but unrestrained chief justices overplay their hands in the past–and it always ends badly for the Court.

I believe Roberts has the political sense to avoid an all-out clash with the elected branches and that the Court has formed its docket and made its decisions accordingly.  F1@1F’s mission is to test that hypothesis through oral argument and opinion analysis as well as interviews with those interested enough to get in the Court’s general admission line.  Given the expected longevity of the Roberts Court, this term alone, even set against the trend of the previous three terms, will hardly be determinative.  But it will be informative.

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3 Responses

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  1. [...] Posted in Clairvoyance by Mike Sacks on February 18, 2010 Professor Rosen follows up his TNR piece with a WaPo column giving serious thought to an F1@1F fancy – Justice Barack Obama: [...]

  2. Jill M said, on February 20, 2010 at 11:43 am

    Interesting behind the scenes info. I’m curious about what parts of civil rights era jurisprudence Rosen says Roberts mischaracterizes…curious and nervous.

  3. [...] it cannot.  I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other [...]


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