Every year, immediately after the Supreme Court term ends, the politics of law briefly becomes our national obsession. This year, inevitably, the pundits’ focus was on just how far to the right the court had shifted as a result of the arrivals of Chief Justice John Roberts and Justice Samuel Alito. The verdict: Not that much, according to Linda Greenhouse of the New York Times. Charles Lane of the Washington Post concurred in this judgment. As did Dahlia Lithwick of Slate. According to this analysis, Roberts’ first term can be seen as a disappointment to conservatives because the court achieved only a minimal shift to the political right.
A second disappointment to conservatives was Roberts’ apparent failure to rein in the “activist” court. That judgment may be short-sighted. Although Supreme Court justices are a notoriously independent bunch, Roberts made substantial progress in bringing about a more harmonious court. More importantly, Roberts seemed to deliver on a promise made at his confirmation hearings: to be a more minimalist justice and to be guided by legal principles rather than political preferences.
John Roberts presented himself as a “legal process” justice at his confirmation hearings. Legal process was a theory propounded by a number of elite law professors in the 1950s in response to the activism of the Supreme Court under Chief Justice Earl Warren. Adherents hold that cases should be decided by “neutral principles” and that the more representative government actors (Congress, the president, and his representatives) should decide big policy questions. They believe in—indeed they emphasize—the distinction between law (which they see as an autonomous discipline governed by reason and principle) and politics (which they view as merely the expression of one’s political preferences).
Roberts sounded these notes at his hearings, pledging to be “modest”—no more than “an umpire calling balls and strikes”—and to decide cases narrowly so as to promote consensus on the court. At a speech at Georgetown this spring he reiterated this preference for narrow, unanimous decisions. And the court under Roberts did enjoy an initial run of unanimity and modesty. As the term progressed, however, it splintered on a number of decisions, and on the last day of the term, refused to defer to the Bush administration’s contention that there should be no judicial review of the administration’s military commissions. Judicial supremacy, the commentators maintained, thus remains alive and well.
And as for Roberts? His earlier talk of humility and restraint were decried as a smoke screen for his conservative political preferences.
But not so fast. Because while the court’s military commissions decision will likely be the defining case of Roberts’ first term—and it casts a long shadow over the chief justice’s goals of promoting institutional modesty and unanimity on the court—we should acknowledge that Roberts still made substantial progress in bringing about his goals.
Under Roberts’ management, the court was a more harmonious institution than it has been in the past. According to statistics compiled by the Georgetown University Law Center’s Supreme Court Institute, the court issued more decisions without dissents than in its previous two terms. The court also issued fewer 5-4 decisions, fewer dissenting opinions, and fewer separate opinions (concurrences and dissents) than in the previous term. Complete unanimity on the court may always be a mirage, but we’re closer to consensus than we were during the last term of former Chief Justice William Rehnquist.
A close look at the term also shows the court rediscovering the “passive virtues”—professor Alexander Bickel’s phrase for resolution of cases without deciding them (by returning them to the lower courts or dismissing them without a decision). The passive virtues helped the court avoid political controversy in resolving three cases. In addition, the court decided two controversial cases—one involving abortion rights, the court’s perpetual third rail—”unanimously on narrow grounds,” according to the Supreme Court Institute report. A modest Supreme Court won’t be built in a day. But the court’s use of these techniques suggests a greater inclination toward restraint under Roberts than under Rehnquist.
The question for the future: Can Roberts continue to orient the court toward his goals of judicial modesty and greater consensus on the court? If so, he may succeed in his task of distancing the court from the political fray.
On both the left and the right, skeptics deny that law can be distinguished from politics. Critical legal scholars and their disciples on the left insist that court decisions are no more than the exercise of political power, and such cynicism seemed vindicated by, for instance, the Supreme Court’s decision in Bush v. Gore. On the right, court-bashing continues to be a popular sport. Although President Bush has appointed hundreds of sitting federal judges, some on the far right continue to attack any federal court that disagrees with them.
Roberts’ ability to deliver a more modest, “legal process” court depends upon whether he is deemed sincere in his conviction that law is separate from politics and can be consistent in his efforts to reduce the role of judicial oversight in American political life. A truly principled Justice follows the law, even when that route leads to a disappointing decision. Such sincerity can be measured in two ways. Do his decisions appear to be results-oriented? And do his decisions seem judicial rather than political?
The answer to the first question is possibly, but not definitely, yes. In his first term, Roberts voted with the conservative bloc more frequently than the liberal bloc. (In particular, he voted more often with Justice Alito than any other justice and less often with Justice John Paul Stevens—now considered the court’s most liberal justice—than any other justice.) Furthermore, Roberts’ votes this term tended toward deference to other government actors—which in the current climate tend to support politically conservative results. Thus, depending upon your political orientation, his votes were either cast by a principled jurist or a politician in a black robe. This is a complicated question to sort out, and the truth is it’s too early to tell.
But consider two closely decided cases in which there was no clear majority because the justices’ votes were splintered. In League of United Latin American Citizens v. Perry, the voting rights case, Roberts voted consistently against judicial correction of Texas’ redistricting map. Was Roberts’ vote a stand against judicial oversight of redistricting (a political action) taken by the Texas legislature (a representative body)? Or a vote to preserve the districts created by the Republican legislature, presumably for the party’s benefit? You make the call.
Similarly, in Rapanos v. United States, the court rejected the Army Corps of Engineers’ approach to determining whether wetlands are “waters” covered by the Clean Water Act. Roberts joined the other four conservative justices in ruling against the government. But before his vote can be dismissed as a political preference for business and against regulation, note that his brief concurring opinion chastised the agency for failing to properly address the problem itself—thereby defaulting on the general claim by a government agency that it is entitled to deference.
Finally, turn to Roberts’ written opinions. His decisions, so far, have been straightforward and clear; he tends to eschew footnotes and to cite only legal authority—prior cases, statutes, and regulations. After reading Roberts’ first two decisions, David Barron of Harvard Law School described Roberts’ citation practice earlier this year as “statecraft by hornbook.” Although Barron noted that the opinions have “a kind of no nonsense quality,” he also expressed concern that they “suggest a vision of constitutional decision making that is awfully cramped and technical,” in which “any sense of the broader legal culture that produces authoritative legal statements” could be lost.
Roberts would likely be delighted with this description of his writing. A legal process justice is the first to acknowledge that neither he nor the court can do it all. The question for the next term—with cases involving partial-birth abortion, the role of race in public high-school education, and the EPA’s authority to regulate carbon dioxide emissions—is whether Roberts will continue to move, and to be seen as moving, the court away from the political fray.