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In Roberts' Tenure, Peace and Love Didn't Last

Chief Justice Disappoints Those Hoping for a Consensus Builder


Daily Journal
September 10, 2007
By Brent Kendall, Staff Writer

WASHINGTON - From the peaceful honeymoon months of 2005 to the bitter ideological clashes that defined last term, the first two years of the John Roberts-led Supreme Court are a story of contrasts.

Praising the virtues of modesty and judicial restraint, Roberts assumed the role of chief justice with a stated goal of bringing more consensus to a court known for its entrenched divisions. And in the opening months of his tenure, Roberts seemed to be making initial strides in that direction.

But as the court added bigger cases and hot-button disputes to its docket, the peace and love evaporated quickly-and dramatically. Not only did the 5-4 decisions grow like weeds in summertime, the decibel level rose as well.

When the dust settled, the court was more divided last term than it had been in more than a decade, with the justices sparring on issues big and small - including abortion, race, campaign finance and pay discrimination. The conservatives prevailed in nearly every case of note, with Roberts proving to be the reliable conservative that many observers expected him to be.

But while Roberts' conservative stripes were never really in doubt, his early track record has nevertheless surprised some court watchers who thought Roberts would, at least occasionally, cede some legal ground to forge a centrist coalition that could navigate the court to a less fractured position.

As Roberts prepares for his third year at the helm of the high court, they're still waiting.

"There wasn't much indication in his rulings last term that Chief Justice Roberts will meaningfully seek consensus among the current group of justices," said Douglas Kendall, the executive director of the Community Rights Counsel, a left-leaning public-interest law firm.

"Roberts didn't depart from the predictably conservative result in cases last term near as much as I expected he would," said Kendall, who received considerable attention two years ago, particularly from liberals, when he expressed a measure of optimism about Roberts' nomination.

The fractious last year at the marble palace saw the court's liberal dissenters regularly voice their displeasure from the bench - normally a fairly rare course of action for a justice - instead of letting their written words speak for themselves.

On the court's final day, meanwhile, the conservative justices found themselves unable to speak with one voice on arguably the biggest decision of the term, which struck down two voluntary school integration programs because of their reliance on race.

Ironically, it was Roberts who wrote the decision and could not hold five votes for a clear majority opinion.

Moderate conservative Justice Anthony M. Kennedy, who provided a fifth vote for the outcome, wrote a separate controlling concurrence that said the Roberts approach was too hard-line.

Justice Stephen Breyer, for his part, spent more than 20 minutes criticizing the majority from the bench. It was perhaps a fitting way to end the term.

"The last term was apparently a total train wreck," said one regular Supreme Court attorney who asked not to be named. "The right and the left went absolutely to war. It seems to have gone very poorly inside the building."

"I imagine that this is part of the learning curve of how to deal with all of these people," the attorney said, but added, "I certainly thought that he would handle the building better than he apparently did."

As court-watchers are still learning what to make of the new chief justice, there are, of course, two sides to the Roberts coin.

Everyone knew that last year's high court docket was filled with cases guaranteed to produce deep divisions, said Notre Dame law professor Richard Garnett.

"I don't recall the new chief staking his reputation on his ability to convince Justice Stevens and the other three progressives to agree with him all the time," Garnett said. "So some of the criticism of the new chief has been misplaced."

Garnett conceded that Roberts may have to step back from his preferred position on occasion if he wants greater consensus, but he objected to the suggestion that Roberts has not done so.

"We in the public can't really know how often the chief has tried to do that," he said. "But when you have a basic disagreement about who should win, it's not clear what there is to do."

There have been cases, Garnett said, where Roberts' efforts appear to have succeeded, including one from two years ago when the court sided unanimously with military recruiters in a dispute with a group of law schools upset over the Pentagon's "don't ask, don't tell" policy regarding gays in the military.

The court, in an opinion by Roberts, rejected the schools' First Amendment challenge to a federal law requiring schools that accept federal funds to allow recruiters equal access to their students.

Garnett said Roberts could have written the opinion in a more aggressive way that might have eroded the liberal justices' support.

While Roberts has proved not to be cut out of the moderate Anthony Kennedy mold, he has at times put some distance between himself and the court's most conservative justices, Antonin Scalia and Clarence Thomas.

In a decision that upheld the federal Partial Birth Abortion Ban Act, Roberts did not join Scalia and Thomas in repudiating the court's abortion precedents. He also did not join them, for example, when the two called on the court to overrule precedents that upheld campaign finance regulations and allowed taxpayers to bring Establishment Clause challenges on the use of federal funds in a manner that promotes religion.

On the other hand, Roberts has been criticized on and off the court for taking positions that in effect overruled earlier court decisions without owning up to doing so.

In the federal abortion case, the court's majority said it was not overruling an earlier decision that struck down a similar law from Nebraska, though the latest opinion appeared to gut most of the earlier holding.

And in this term's campaign-finance case, the court crippled, but did not explicitly invalidate, a key provision of the McCain-Feingold reform law that barred interest groups and corporations from running "issue ads" in the lead-up to an election.

Scalia had harsh words for Roberts' opinion in the case, calling the chief's approach "faux judicial minimalism" and "judicial obfuscation."

Breyer, speaking recently to The New Republic about some of last term's conservative ruings, said that if the court is going to overturn precedent, "I do think it's better to be open."

Garnett said that Roberts so far looks a lot like his mentor, William H. Rehnquist, the late chief justice for whom Roberts served as a law clerk.

"There's a tradition of judging and lawyering," Garnett said, "that the new chief comes from which is drawn to taking small steps, incrementalism and taking each case as it comes."

"Sometimes that approach is a little messier," he added.

Kendall, of the Community Rights Counsel, cautioned that it's still very early to make definitive conclusions about Roberts.

"You never want to make a final determination about a justice after two terms," he said. "You never know how things are going to evolve over time."

On first glance, the court's upcoming docket appears to be less ideologically explosive than last year's, so Roberts and his colleagues may have more opportunities to find common ground. There is one notable exception: a case examining the legal rights of detainees held in Guantanamo Bay, Cuba. Previous Supreme Court cases on detainee rights have been very divisive.

Much of the court's calendar, however, has yet to be determined.

The justices will kick off their new term on Oct. 1.


© 2007 Daily Journal Corporation. All rights reserved.



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