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Chief Justice Roberts on the Role of the Supreme Court:
My colleague Jeffrey Rosen has a tremendously interesting article in the Atlantic Monthly based on an interview with Chief Justice Roberts. In the interview, Roberts articulates his goals as Chief Justice and how he wants to change the output of the Court and how the Justices work together. It's a must-read. Thanks to Howard for the link.
Ramza:
So far it seems Roberts seems to be building consistency. For example, if Roberts really wanted to he could have got Ayotte v. Planned Parenthood of New England to be delayed until Alito hearings were over. At the time O'Connor was still on the bench, but since she already announced her resignation any court cases where she had to break the tie, would just be reheard by her replacement. If Roberts really wanted to theoretically he could have convinced Kennedy to side with himself, Scalia, and Thomas yielding 4 votes and the upcommming fifth vote if he wanted to overturn abortion precident. Instead O'Connor wrote the first unanmious Supreme Court abortion ruling in thirty years, sending back the court case on the question of severbility of the law. If Roberts really wanted to (which many conserative advocates) Roberts could have set new precident with defining what is a "health exception" and what are "health risks" (and thus create a magnyfing glass through which to view Roe and Casey) but he didn't.

Instead he decided to start his career as a supreme court justice focusing on corporation and conscientious, instead of letting his ideology blind him.
1.11.2007 5:13pm
Anon14:
I have to dissent from O. Kerr's take on the Rosen piece. The charm offensive by the new Chief has gone overboard, and the Atlantic piece is a particularly puffed-out, unneeded contribution. He's a fascinating figure, no doubt, but I think we've all received the memo by now that the Chief aims to increase unanimity on the Court. And I disagree with Rosen's assessment that the Rehnquist Court was a "success" or the notion that Rehnquist was a successful chief---terms of central importance to the opening of the article but which the author leaves undefined.

The Chief came across (perhaps not his fault) as having a rather unnuanced view of history and the Court's role in not only deciding questions of public importance, but in providing guidance to lower courts, both state and federal. The narrow opinions needed to achieve unanimous results are often too narrow to be of much guidance to the judges sitting below who need to apply rules to cases.

Also, the notion that the country is more polarized now than in years past is, I think, false. The Vietnam era was rather polarizing, as were decisions from the Warren Court in the civil rights era. Or the Civil War, and the flouting of SCOTUS decisions by Abe Lincoln, or when Taney wrote his Dredd Scott opinion prior to the war. And we're certainly more stable and harmonious today than we were when the Chief's hero John Marshall joined the Court in 1801. The late Adams administration and the 1800 election makes our current national divisiveness pale in comparison.

All in all, it was surprising to read a piece intended at flattery but that left me thinking less of the subject.

N.B. I'm still generally a Roberts fan.
1.11.2007 5:48pm
BobH (mail):
The Atlantic Monthly is the most consistently excellent magazine in the country -- head and shoulders above Harpers, for example, which has become little more than a shrill ideological screed. (But DAMMIT, I still have to subscribe, because otherwise how would I get the Maltby cryptic, the only consistently worthwhile item in the rag?)
1.11.2007 6:32pm
Tim Dowling (mail):
Great piece. Since Chief Justice Roberts wants to avoid the "personalization" of the law, I don't think we'll see TV cameras in the courtroom any time soon.

This is an exceedingly minor point, but in light of the Chief Justice's emphasis on the importance of "The Court" as opposed to the individual Justices, I wonder whether he might regret the change in how oral argument transcripts are prepared, with references to the individual Members, as opposed to the former practice of simply putting "The Court:" before each question.
1.11.2007 7:15pm
Rex:
The Chief came across (perhaps not his fault) as having a rather unnuanced view of history and the Court's role in not only deciding questions of public importance, but in providing guidance to lower courts, both state and federal. The narrow opinions needed to achieve unanimous results are often too narrow to be of much guidance to the judges sitting below who need to apply rules to cases.

I tend to agree with this. I read Roberts here as suggesting that he's willing to sacrifice clarity and guidance for the lower courts for the sake of minimalism and unanimity. To the extent that's true, I think it's the wrong move.

I'm reminded of some of the parts in Woodward and Armstrong's The Brethren that show Berger to be frustrating and even alienating the other justices with his quest to establish the power of the court and his role as Chief through unanimous decision-making. Both this and what Roberts is suggesting in the article seem to me to be taking the power of unanimity appropriate in situations like Brown too far; although speaking as one voice certainly has its place, reaching compromise merely for its own sake adds little if anything to the relevant body of law.

Roberts apparently dislikes splintered opinions. I agree that cases like Bakke, Tidewater, and the McCreary County/Van Orden pair (to pick only a few) are structurally suboptimal, but I'd argue that the 5-4 and 6-3 splits that Roberts bemoans have their own aesthetic value. For example, if all justices genuinely disagree on an issue, I think it's preferable to confront the issue head-on by allowing the majority and dissenters to lay out the various arguments for and against, as opposed to construing the issue in an artificially narrow fashion so as to achieve a measure of consensus. At least then the public would know where the Court really stands -- and, more specifically, where the individual justices stand and likely will remain going forward.

It's almost like Roberts is advocating for a decision-making process which allows the Court to avoid the truly controversial issues and instead pass them onto the lower courts. Even if this is only a side effect of the true aim, I think Roberts needs to carefully consider the real costs of such an approach, i.e., the drawing out of the litigation and the failure to add clarity to the law. In the example of the Norfolk Southern opinion this week, aside from Roberts's view that the railroad was sneaking in the additional issue of which negligence standard to apply, why not just go ahead and say what that standard is? If the majority opinion had adopted the language of the concurrences, the Court likely would save the parties and courts time and money, as well as resolving the issue for similar disputes. Is declining to do that for the sake of a minimalist aesthetic really worth it? If so, what does that say about the ability of the Court to lead the rest of the judiciary?
1.11.2007 9:14pm
SuperChimp:
Here's the section I found most interesting:

Chief justices, Roberts acknowledged, are more likely to sublimate their personal views for the good of the Court than associate justices are; he cited the example of his former boss, William Rehnquist, for whom he clerked. "I think there's no doubt that he changed, as associate justice and chief; he became naturally more concerned about the function of the institution," Roberts said, pointing out that though Rehnquist had previously opposed the Miranda v. Arizona decision of 1966, which required the police to read suspects their rights, he wrote the opinion upholding Miranda in 2000. "He appreciated that it had become part of the law—that it would do more harm to uproot it—and he wrote that opinion as chief for the good of the institution."

To me, this not only shows that the 'Roberts Approach' fundamentally differs from that of Scalia or Thomas, but it might also illustrate a willingness to uphold controversial precedent in areas as diverse as the commerce clause, Roe v Wade, and perhaps voting rights law.
1.11.2007 10:50pm
Ploni:
For now, suffice it to say that for those of us who think that the incorporation of the bill of rights against the states, as well as Mapp's exclusionary rule, was a good thing, let us be happy that the Warren Court justices didn't feel the same way as CJ Roberts. We'd still be stuck on a case by case management of state approaches to criminal trials, and a dead letter fourth amendment (to the extent incorporated against the states), if Roberts' philosophy had prevailed. Remember that one of the justices that Roberts' has repeatedly expressed admiration for, John Marshall Harlan II, strongly dissented from the Supreme Court case ending the silver platter rule. Either that case or Mapp (both?) was a Per Curiam decision overturning then existing precedent without oral argument. When the Supreme Court had to act to solve a crisis (the virtual elimination of real "free[dom] from unreasonable search and seizure", it did so. No doubt Roberts would have been horrified if he was on that court that stepped on the the gas when it had to act boldly.
1.11.2007 11:19pm
Fingerprint File (mail):
This article is absolutely fascinating.

The CJ as wide-eyed kid: "Roberts decided early in his first term to embrace Marshall as a model. 'Once you're here you don't immediately think you've got to be like Oliver Ellsworth.'" This was probably my favorite line in the whole article. Roberts seems young, looking up to his idol, the sky is the limit, uniformity can be achieved - under my leadership.

I also loved this quote, recollecting his experience on the DC Circuit: "So I always spoke first," Roberts said with a laugh. "And what it meant was that I kind of had to be prepared, almost like law school, to state the case from the very beginning." Again, Roberts seems so youthful.

The ego of the Chief Justice: ""If I'm sitting there telling people, 'We should decide the case on this basis,' and if [other justices] think, 'That's just Roberts trying to push some agenda again,' they're not likely to listen very often." Now we get into substance. Does Roberts really think the other Justices are not smart enough to figure out his agenda, no matter how well he tries to hide it?

Oh God, please tell me this next quote means Roberts will personally reaffirm Roe/Casey. Speaking of his predecessor's opinion upholding Miranda: "He appreciated that it had become part of the law—that it would do more harm to uproot it—and he wrote that opinion as chief for the good of the institution." Perhaps he's just admiring his old boss. One can dream though.

I have to say that after reading this, I'm a fan. This was a very humanizing article, at least to the extent that that can be expected of someone of his stature.
1.12.2007 2:35am
Visitor Again:
It is, indeed, a fascinating piece. But the day I believe Chief Justice Roberts means what he says will come only when he votes to reaffirm Roe vs. Wade or votes against his own personal predilections in some major constitutional cases. I haven't seen anything remotely indicating he's willing to do that for the sake of the institutional role of the Court. All I have seen is that he's managed to have the Court achieve unanimity by narrowing the decided issue to the point where it is no longer of major constitutional import (although the military recruiting on campus case is perhaps an exception to this).

In fact, what he's done so far indicates the contrary. In every case where the so-called liberals have been pitted against the so-called conservatives, he has gone along with the conservatives. That's his privilege, of course, but it does undermine what he says about his concern for the Court's institutional role and about the role individual justices should play in serving institutional interests. It gives the impression that he's asking other justices to do what he himself isn't willing to do.
1.12.2007 5:08am
M. Simon (mail) (www):
Could some one explain the "silver platter rule"?
1.12.2007 8:30am
Visitor Again:
You'll find a pretty good explanation of the silver platter rule here. Read the whole essay if you want a fairly detailed but short explanation of the development of the exclusionary rule, but only footnote 370 if you are interested only in the silver platter rule. Don't let the footnote numbers scare you off; the essay is part of a much larger work; the first footnote in the linked essay is numbered 362.
1.12.2007 10:07am
duneclimb:
BobH, at the risk of violating copyright law, you could do what my wife does: photocopy the Maltby cryptic from our public library's copy of Harpers. That way, we avoid paying for the rest of the magazine, which is -- as you rightly note -- a collection of screeds.
1.12.2007 3:08pm
Lev:

Roberts apparently dislikes splintered opinions. I agree that cases like Bakke, Tidewater, and the McCreary County/Van Orden pair (to pick only a few) are structurally suboptimal, but I'd argue that the 5-4 and 6-3 splits that Roberts bemoans have their own aesthetic value. For example, if all justices genuinely disagree on an issue, I think it's preferable to confront the issue head-on by allowing the majority and dissenters to lay out the various arguments for and against, as opposed to construing the issue in an artificially narrow fashion so as to achieve a measure of consensus.


I didn't realize SCt decisions were supposed to judged on their aesthetics. I thought they were supposed to decide cases, and to do so in a manner that did not sow confusion.\

And how do 5-4 and 6-3 splits with 5 to 9 opinions, concurring in some parts but not in others, and in the judgments but not the reasoning actually do anybody any good except the big fat egos of the geriatrics?
1.14.2007 12:43am