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Tuesday, June 26, 2007

Meet the Roberts Court

I've been unusually quiet during this guest stint, in large measure because for most of the month the Supreme Court has given us surprisingly little to dig our teeth into.  Well, all that changed yesterday, with a series of important and contentious rulings.  I'll have more to say about the substance of those decisions in the next few days, but this is a macro-post.

Every Court has its own personality, its own themes, and its own cast of characters.  We have gradually been accumulating data about the current set of Justices, but until yesterday we remained a bit short on information.  Taking yesterday's decisions and adding them to what we already know, here's a brief portrait of the (first) Roberts Court.

Chief Justice John Roberts is a strong conservative leader with firm convictions as to the proper role of the courts and the proper outcome of cases and a willingness to move the Court aggressively towards those goals.  His closest ally is his former Reagan administration colleague and fellow new Justice Sam Alito, who he favors with the assignments in the bulk of the 5-4 cases where the Chief cannot or prefers not to take the opinion himself.  The two are quite comfortable interpreting precedents narrowly or creating broad exceptions to them, but prefer not to overrule precedents outright.

They can count on the votes (though often not the praise) of their more senior right-wing colleagues, Antonin Scalia and Clarence Thomas.  Justices Scalia and Thomas have become--if anything--more aggressive in their desire to overturn precedents that distress them and seem to be relishing the role of guardians of logical and ideological purity.  Whether there is genuine tension between the two pairs of conservative Justices or whether their different approaches suggest different roles is a question to be watched.  Whatever their intentions, the separate opinions of Justices Scalia and Thomas have the effect of making the opinions of the Chief Justice and Justice Alito look moderate in comparison.

Justice Anthony Kennedy is, as everyone predicted, the fulcrum of the Roberts Court, but he is far from a centrist.  While he might on occasion decline to provide a fifth vote for the Roberts-led majority (usually, thus far, in fact-specific cases in the death penalty context), his primary influences are to keep the tone of the majority opinions civil and to write separately to remind us that some of the stronger doctrinal implications of the Court's opinions are not fete accompli.

The four more liberal Justices--John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Steven Breyer--are clearly on the defensive.  As many commentators have noted, the four have taken to reading their dissents from the bench (slightly) more often and to signing on to a single dissenting opinion with greater frequency.  These signs and the content of their dissenting opinions suggest that these Justices are not simply frustrated by losing a string of close votes, but instead see jurisprudential and thematic connections between the cases that portend further shifts.

Substantively, the Reagan Justice Department is firmly in control.  As the documents and the news analyses that got so much attention during the Roberts and Alito confirmation hearings reminded us, the conservative legal leadership that came of age in the early 1980s took its inspiration from the conviction that the Warren and (to a lesser extent) Burger Courts consistently overreached, staking out a role for the courts that is fundamentally inconsistent with a properly functioning republican government.

From the earliest days of the Reagan administration (and the Federalist Society and similar organizations), the attack on the Warren-Burger judicial culture was twofold.  First, a particularly offensive set of overreaching precedents needed to be wiped away (led, of course, by the abortion and criminal procedure decisions).  Second, and more importantly, the courts--having proven incapable of policing themselves--needed to be restrained by a series of more formal doctrines and devices (new methods of constitutional and statutory interpretations, limits on common law and equitable powers, a strengthened standing doctrine, firm readings of rules and deadlines, etc.). 

The results thus far this term suggest the Roberts, Alito, and friends are making progress on both fronts.  History is long and winding and it is way too soon to chalk up a victory for the Reagan agenda, but it is hard to imagine the Roberts Court getting off to a better start in that direction.  In the end, the proper benediction on the term so far is probably this:  the new Justices are as advertised and, so far, they are holding their Court.

Posted by amsiegel on June 26, 2007 at 10:43 AM in Constitutional thoughts, Current Affairs | Permalink


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» Round-Up: Other News from SCOTUSblog
At Slate, Dahlia Lithwick and Walter Dellinger have this exchange providing end-of-the-Term analysis. Andy Siegel has this portrait of the Roberts Court at PrawfsBlawg.Greg Stohr of Bloomberg reports here on "what may have been the most pro- business U... [Read More]

Tracked on Jun 26, 2007 6:58:44 PM


Professor Siegel,

You seem to be dead right. Did you happen to catch the article in the Washington Post this morning on Dick Cheney's influence in environmental policy? Read that alongside Monday's decision in National Association of Home Builders v. Defenders of Wildlife, particularly the Court's failure to even acknowledge the "God Squad." The Court, particularly Alito and Roberts, seems to be doing the Administration's bidding in a lot of areas.

Posted by: Anonymous | Jun 27, 2007 6:42:47 AM

To Jeff: Who knows? That was not the case before the court - before the court was an idiot who decided to unfurl a banner which promoted illegal drug use during the school day at a school event, distracting fellow students and school staff from the purpose of the class trip. And, like many of the teenage idiots our culture has managed to breed, he flatly disobeyed an order from his principal and refused to take down the banner. (The other students who helped him hold the banner did act respectfully toward the principal and obeyed her). Later, this moron decided to waste his life's time and expend the resources of the federal courts over this nonsense. I would venture to say, however, that if he held up a "4 Jesus" sign, he still should have been disciplined for the same reason - he was on school time and he did not have the right to do whatever he pleased. Can a student walk up and down the aisle in a classroom with a "4 Jesus" sign while his fellow students are taking an exam? No. And if school authorities happen to move the classroom outside for whatever purpose, the same rules, and the same authority of school officials, apply. I daresay that the American Criminal Liberties Union would, in the event of a "4 Jesus" sign, claim hysterically that the separation of church and state was in dire danger. As it was later revealed, this shining example of an American teenager was later busted on marijuana charges. Instead of planning for a good life and a good career, this idiot obviously had the misfortune of having parents who think his life's time is best spent in the federal courts with a stupid lawsuit. I assume he is behind the counter of McDonald's serving french fries as I write. No, wait, I just insulted the decent, hard-working folks at McDonald's by throwing this loser into their midst.

Posted by: Cap Coleman | Jun 27, 2007 1:52:38 AM

Ok, and what if the banner got torn on the way over, and it just said " 4 Jesus"

Posted by: Jeff | Jun 26, 2007 10:10:54 PM

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