Greenhouse & The Roosevelt Rubicon, Redux

Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court.  Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.

Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003′s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock.  She concludes:

In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?

Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.

F1@1F in January:

For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.

Greenhouse in March:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

F1@1F in May, post-Comstock:

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate.  Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors.  Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.

Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court.  Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year.  A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936.  The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”

How unseemly it all could be.

And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case.  The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.

Souter Flurry

Last week, I published a run-down of Justice Souter’s speech at Harvard, in which he offered a strong rebuttal to the textualist/originalist approach that has come to dominate our confirmation hearing debates.  This week, there has been a flurry of commentary on the speech from Linda Greenhouse of the New York Times, Joan Biskupic of USA Today, and E.J. Dionne of the Washington Post.

This speech, however, was not only meant to address today’s public and Souter’s former colleagues.  As I wrote two months ago, Souter is taking the long view towards restoring a balanced approach to judging thrown off-kilter by the Warren and Burger Courts’ liberal overreach and the Rehnquist and Roberts Courts’ conservative overcorrection.  Souter’s speech, then, may be taken in tandem with his valedictory Osborne dissent from last term, in which he advocated for the the law’s restrained evolution–something that was common sense to liberals and conservatives several generations ago but today seems downright paradoxical compared to our current choice of calcification or activism.

Here’s the relevant part of the dissent in full:

As for determining the right moment for a court to decide whether substantive due process requires recognition of an individual right unsanctioned by tradition (or the invalidation of traditional law), I certainly agree with the Court that the beginning of wisdom is to go slow. Substantive due process expresses the conception that the liberty it protects is a freedom from arbitrary government action, from restraints lacking any reasonable justification and a substantive due process claim requires attention to two closely related elements that call for great care on the part of a court. It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.

It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone, and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut, 381 U. S. 479 (1965) (personal privacy);Lawrence v. Texas, 539 U. S. 558 (2003) (sexual intimacy), see also Washington v.Glucksberg, 521 U. S. 702, 752 (1997) (Souter, J., concurring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade, 410 U. S. 113 (1973), with Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833(1992) (joint opinion of O’Connor, Kennedy and Souter, JJ.).

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

Roosevelt Rubicon: Greenhouse, L, concurring.

Linda Greenhouse echoes my previous post in her NYT Opinionator column filed last night:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

Greenhouse on the Court and Political Climate

Here’s Linda Greenhouse, the former NYT Supreme Court reporter, interviewed about themes very important here at F1@1F:

JD: In an article you wrote for The New York Times, you say that “the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.” In what instances have you observed the court straying too far from present social or political consensus?

There was a series of Supreme Court decisions in the 1990s that overturned acts of Congress on the ground that Congress didn’t have the constitutional authority to have passed those laws in the first place. I made a big deal about it because I just thought it was really fascinating. There was a pushback against that. Congress pushed back, and the political system pushed back. The court stopped doing it. They tended to be very technical decisions, but subgroups of the population were very interested. That maybe was an instance of the court overreaching, that you could call a Federalist revolution. Then, a lot of people cite Roe v. Wade as the court overreaching. That’s not my view in that instance. There was a huge debate going on about abortion at the time, and the court actually had plausible reasons to think that it was following public opinion in Roe.

JD: What was the difference in the political environment surrounding Roe v. Wade and that surrounding a case like Brown. v. Board of Education? What made people think that the court could have been overreaching in Roe, but not in Brown?

Well, of course there can be many reasons. One reason could be that equal protection, which is what Brown is based on, is hard wired into the Constitution, and it’s just a question of, did equal protection mean “separate but equal”? One could have disagreed with Brown, and of course many areas in the South took decades to come around to it, but you couldn’t appropriately argue that it wasn’t the business of the Supreme Court to decide the issue of the rights of black citizens. Of course, the Constitution doesn’t contain the word abortion. So, there’s always the argument that the court was out of line in doing anything about abortion, yay or nay. The Constitution doesn’t say anything about giving the court the right to step into that area. That’s not my personal view, but it certainly distinguishes the Roe controversy from Brown v. Board. [...]

JD: To what extent do you believe that the court has become politicized? How much does public opinion affect the way judges vote?

Well, Barry Friedman wrote a book that’s 682 pages on the subject, called The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. But Barry Friedman’s thesis, which I agree with, is not that the court wakes up in the morning, puts its finger in the wind and says, you know, “what’s blowing today?” but that over time, the court tends to situate itself in the mainstream of public opinion and it reflects public opinion, which makes sense, because the justices get on the court through the political process of the president nominating them and the Senate confirming them. And as a part of the government, the court is really limited to its power to persuade, its power to command the respect of the public, which it has succeeded in doing to a remarkable degree over the years. In social science polling, the court is always the most respected arm of government. The court really has been pretty successful in reflecting not necessarily the opinion of the moment, but the tenor of the time, and I think that’s not surprising.

JD: Do you agree with people who say that sometimes the court’s decisions are influenced by liberal media bias?

Well, no, the whole “Greenhouse Effect?” Properly understood, they are referring to me not as an individual but as sort of an embodiment of Eastern liberal media, namely The New York Times. No, I don’t think that’s the case, but it’s certainly true that over time, the court certainly cannot be completely at odds with the American public. I mean, that’s what happened in the Roosevelt court-packing crisis. I hear people speculate that if we were ever to pass a health care bill with a mandate that the court would declare it unconstitutional, but I would be completely shocked if that ever happened, because that would really be a return to the 1930s, where the court was standing in the way of major social legislation that the public had called for. So, I would be extremely surprised if that ever happened again. [F1@1F NOTE: My thoughts exactly.]

JD: In writing of the Supreme Court’s relationship with society, you say, the Supreme Court is often a follower: it ratifies or consolidates change, rather than propelling it, although in the midst of a heated debate about a big case, it can appear otherwise. What do you mean by this?

Well, I think I probably had Roe v. Wade in mind. Abortion reform had been going on for 15 years by the time the court decided Roe, so when people say that historically, the court started it, no, they didn’t. The court doesn’t start much. It can’t, really. Cases reach the court after years of debate. Just look at Proposition 8. It’s coming up ten years after Lawrence v. Texas and five years after the start of same sex marriages in San Francisco City Hall. So, things get to the court only because they have been working their way up through the rest of society, and it’s worth keeping that in mind.