Jeffrey Rosen: The Trial of John Roberts
[Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic.]
FOUR years ago, when John Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall. But if Chief Justice Roberts presides over a broad, ideologically divided ruling in a campaign finance case the court heard last week, he risks being remembered instead as a conservative Earl Warren.
For decades conservatives have attacked Warren, who was chief justice from 1953 to 1969, as the face of liberal judicial activism. They have criticized him for presiding over a court that imposed a contested vision of social justice on an unwilling nation — overturning decades of precedents and scores of federal and state laws in the process.
Moreover, conservatives view Warren as a Machiavellian former politician (he had been governor of California) who used incremental strategies to pursue radical ends — handing down a series of cautious decisions that favored the police, for example, and then tying their hands by requiring officers to read suspects their rights in the 5-to-4 Miranda decision of 1966.
Likewise, if the Roberts court issues a sweeping 5-to-4 decision in the current case, Citizens United v. the Federal Election Commission, striking down longstanding bans on corporate campaign expenditures, it would define John Roberts as indelibly as Miranda defined Earl Warren. And there is no reason for the court to do so: it would be easy for the justices to rule narrowly in the Citizens United case, holding that the corporate-financed political material in question — a documentary called “Hillary: the Movie” — isn’t the kind of campaign ad that federal law was intended to regulate.
But many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents. If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.
In his confirmation hearings in 2005, Judge Roberts talked about the “jolt to the legal system” that occurs whenever the Supreme Court overturns its own precedents. And soon after taking office, he expressed concern that his colleagues were acting more like law professors than members of a collegial court in their willingness to divide along predictable party lines. He said he would try to persuade his colleagues to converge around narrow, unanimous opinions that avoided the most contentious constitutional issues. The result, he said, would help shore up the court’s legitimacy in a polarized age...
... The success of Earl Warren’s bipartisan decisions, and the intense controversy produced by his ideologically divided ones, offers a cautionary tale for Chief Justice Roberts. If he presides over a court that establishes itself as the adversary rather than the partner of the president and Congress — imposing hotly contested visions of free speech and racial equality with a narrow court majority — he will become as polarizing a figure at the beginning of his tenure as Warren became at the end of his own.
John Roberts clearly understands the stakes. During an interview at end of his first term, he told me that the most successful chief justices in American history have been able to persuade their colleagues to speak with one voice. By contrast, he said, 5-to-4 decisions involving the most controversial questions in American politics make it harder for the public to respect the court as an institution that transcends politics.
Now he can support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down. John Marshall or Earl Warren: the choice is his.
Read entire article at NYT
FOUR years ago, when John Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall. But if Chief Justice Roberts presides over a broad, ideologically divided ruling in a campaign finance case the court heard last week, he risks being remembered instead as a conservative Earl Warren.
For decades conservatives have attacked Warren, who was chief justice from 1953 to 1969, as the face of liberal judicial activism. They have criticized him for presiding over a court that imposed a contested vision of social justice on an unwilling nation — overturning decades of precedents and scores of federal and state laws in the process.
Moreover, conservatives view Warren as a Machiavellian former politician (he had been governor of California) who used incremental strategies to pursue radical ends — handing down a series of cautious decisions that favored the police, for example, and then tying their hands by requiring officers to read suspects their rights in the 5-to-4 Miranda decision of 1966.
Likewise, if the Roberts court issues a sweeping 5-to-4 decision in the current case, Citizens United v. the Federal Election Commission, striking down longstanding bans on corporate campaign expenditures, it would define John Roberts as indelibly as Miranda defined Earl Warren. And there is no reason for the court to do so: it would be easy for the justices to rule narrowly in the Citizens United case, holding that the corporate-financed political material in question — a documentary called “Hillary: the Movie” — isn’t the kind of campaign ad that federal law was intended to regulate.
But many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents. If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.
In his confirmation hearings in 2005, Judge Roberts talked about the “jolt to the legal system” that occurs whenever the Supreme Court overturns its own precedents. And soon after taking office, he expressed concern that his colleagues were acting more like law professors than members of a collegial court in their willingness to divide along predictable party lines. He said he would try to persuade his colleagues to converge around narrow, unanimous opinions that avoided the most contentious constitutional issues. The result, he said, would help shore up the court’s legitimacy in a polarized age...
... The success of Earl Warren’s bipartisan decisions, and the intense controversy produced by his ideologically divided ones, offers a cautionary tale for Chief Justice Roberts. If he presides over a court that establishes itself as the adversary rather than the partner of the president and Congress — imposing hotly contested visions of free speech and racial equality with a narrow court majority — he will become as polarizing a figure at the beginning of his tenure as Warren became at the end of his own.
John Roberts clearly understands the stakes. During an interview at end of his first term, he told me that the most successful chief justices in American history have been able to persuade their colleagues to speak with one voice. By contrast, he said, 5-to-4 decisions involving the most controversial questions in American politics make it harder for the public to respect the court as an institution that transcends politics.
Now he can support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down. John Marshall or Earl Warren: the choice is his.