FIRST ONE @ ONE FIRST

NYT End-of-Term Analysis

Posted in Law and Politics by Mike Sacks on June 29, 2010

Adam Liptak has a great recap of the just-completed 2009 term:

Chief Justice Roberts took control of his court this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues on an array of other issues.

He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.

“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.

This analysis is absolutely on point.  The intellectual underpinning of F1@1F has been my hypothesis, now apparently proven if the NYT analysis is a reliable source, that this term’s docket largely reflected the Chief Justice’s awareness of the Court’s available political capital to achieve conservative gains beside liberal elected branches.  The Court primed itself to move the law where they could and to leave for a later day those that would do more damage to the Court’s institutional legitimacy than their worth to the conservative legal movement.

For newer F1@1F readers, please give this post a read.

Most striking since I wrote the piece has been the Chief Justice’s ability to call upon the sort of “restrained activism,” introduced in NAMUDNO at the end of last term when he limited the scope of the Voting Rights Act of 1965 rather than strike it down as many expected.  This term, he has employed and endorsed such legislation from the bench so to get the kinds of politically acceptable results to make some of the Court’s pro-business decisions go down a bit easier.  Last week, he joined Justice Ginsburg’s Skilling decision to specifically limit and define federal honest services laws rather than strike them down–as urged by Scalia, Kennedy, and Thomas–so not to let Jeff Skilling walk free.  Yesterday, in Free Enterprise Fund v. PCAOB, the Chief Justice rewrote the Sarbanes-Oxley Act–created in the wake of Skilling’s Enron collapse–to force the Public Company Oversight Accounting Board into his vision of constitutionality rather than strike it down outright.

What we’ve had, as I suggested in the winter, is a Chief Justice that knew–and cared–that the Court had only one huge expenditure available to it, and spent it in Citizens United.  The rest of the docket was formed and decided accordingly, with the conservatives taking smaller, more under-the-radar steps while the liberals won what they could.

Whereas Justice Kennedy may be the limiting factor on the hot buttons of abortion and affirmative action, issues as the NYT piece noted were nowhere to be found this term, he’s firmly in the maximalist pro-business camp.  And for a Court operating in an economic downturn with Democrats in the political branches all too willing to cast it as the tool of an intemperate Tea Party, the Chief–often joined by Justice Alito–must serve as the prudent captain of his man of war‘s voyage towards economic liberty without crossing the Roosevelt Rubicon.

One Response

Subscribe to comments with RSS.

  1. [...] 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 [...]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 112 other followers

%d bloggers like this: