FIRST ONE @ ONE FIRST

Greenhouse & The Roosevelt Rubicon, Redux

Posted in Clairvoyance, Law and Politics by Mike Sacks on December 17, 2010

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.

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.

Graham, Comstock, and the Chief Justice

Posted in Case Reports, Law and Politics by Mike Sacks on May 26, 2010

F1@1F has from its inception been animated by my hypothesis that the Roberts Court’s docket and decisions have been shaped the Chief Justice’s sensitivity to the Court’s surrounding political climate.  As such, Citizens United represented less an act of war against the Democratic-controlled White House and Congress, and more a picked battle strategically placed to cause minimal institutional harm to a conservative Court with diminished political capital.  Now that oral arguments are over and the politically salient cases are finally being decided, F1@1F will focus more fully on whether this term’s opinions support or disprove the hypothesis.

Last week’s opinions in Graham v. Florida and United States v. Comstock found Chief Justice Roberts unexpectedly siding with the Court’s liberal wing on ideologically divisive questions of law and politics.

In Graham, six members of the Court voted to vacate a juvenile’s sentence of life without parole for a non-homicide crime. Justice Kennedy’s five-member majority opinion, joined by the Court’s liberal bloc, declared that all such sentences categorically violate the Eighth Amendment.

Concurring in the judgment, Chief Justice Roberts hedged with an as-applied analysis rather than categorically endorse Kennedy’s expansive Eighth Amendment jurisprudence.  Yet Roberts also refused to sign onto Thomas’s categorical denial of relief, despite his joining the dissent in Kennedy v. Louisiana, which outlawed the death penalty for child rape.

In a way, the Chief’s vote seems to recognize the public ambivalence towards life without parole (LWOP) for juveniles convicted of non-homicide crimes.  As he saw it, people are either confortable enough in theory with the laws as written that allow LWOP, but are loath in practice to trust trial judges to fairly wield such awesome power; or they are uncomfortable in theory with LWOP for juveniles, but wish the death penalty still applied when confronted with particularly heinous crimes committed by almost-adults.   It was for the latter type who, like the majority, reject even the theory of LWOP for juveniles, that Roberts juxtaposed Graham, who received LWOP for armed robbery with assault or battery, with a 17-year-old who “beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill” and two juveniles “who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.”

Judging by his Graham concurrence and his joining the Kennedy dissent, Roberts’s own Eighth Amendment jurisprudence is more pragmatic and politically responsive than that of his eight colleagues.  In undertaking a proportionality analysis, Roberts’s views are apparently guided by the shock of the crime rather than the severity of the punishment.  Particular punishments are never categorically beyond the pale; only certain crimes are.

In Comstock, Roberts joined Justice Breyer’s opinion without any hedging whatsoever, thereby restoring a seemingly more expansive view of Congress’s Article I power than the Rehnquist Court would have allowed, at least before Raich. He could have joined Kennedy’s or Alito’s narrower concurrences in the judgment and thwarted a majority.  Instead, he gave a fifth vote to a mode of reasoning that may dim the hopes of those challenging the Affordable Care Act.

The Chief Justice may have felt compelled to join Breyer’s opinion, which also included the rest of the liberal bloc, so to secure for the parties and future litigants a clear holding.  I have difficulty believing that if the votes at conference were the same as they were at decision–7-2 to uphold as within Congress’s power a federal statute allowing for the civil commitment of sex offenders after their federal prison sentences have ended–the Chief would have delegated the majority opinion to Justice Breyer.  This case had serious federalism implications, after all, and Breyer’s penchant for multi-factor balancing tests and general hostility to narrower readings of Congress’s Article I powers promised an opinion that would not sit well with the Court’s conservatives.

Two scenarios, then, come to mind.  Roberts may have originally been with Thomas and Scalia in dissent, believing that Congress’s legislative powers go no further than those specifically enumerated in Article I of the Constitution.  Justice Stevens, as the senior justice in the majority, could have assigned the opinion to Breyer as a reward for Breyer’s fever-pitch dissent in Lopez protesting the start of the Rehnquist Court’s ultimately incomplete federalism revolution.  When Breyer’s opinion failed to attract five votes, Roberts may have switched his own, finding the opinion’s mushy language eminently manipulable to more conservative results in more important future cases.

The same pattern holds for a second scenario in which Roberts, unable to countenance freed sex offenders for the sake of federalism principles, may have voted at conference with Kennedy or, more likely, Alito.  If the conference counted the votes based on reasoning rather than results, then Stevens still would have been the assigning justice.

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.

Together, Graham and Comstock reveal a Chief Justice acutely aware of the country’s political climate and unwilling to sacrifice the Court’s institutional legitimacy for across-the-board conservative gain.  There remain a handful of major cases yet to be decided, however, that could reveal a Chief Justice ready to gamble what remains of his Court’s post-Citizens United political capital on a few more battles.

Roosevelt Rubicon: Greenhouse, L, concurring.

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 26, 2010

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.

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