Jeffrey Rosen: Just How Radical is the Chief Justice?
[Jeffrey Rosen is the legal affairs editor of The New Republic.]
Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v. Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates. It was precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.
In 2006, at the end of his first term on the Court, Roberts told me and others that he was concerned that his colleagues, in issuing 5-4 opinions divided along predictable lines, were acting more like law professors than members of a collegial court. His goal, he said, was to persuade his fellow justices to converge around narrow, unanimous opinions, as his greatest predecessor, John Marshall, had done. Roberts spoke about the need for justices to show humility when dealing with the First Amendment, adding that, unlike professors writing law review articles, judges should think more about their institutional role. “Yes, you may have another great idea about how to look at the First Amendment,” he said, “but, if you don’t need to share it to decide this case, then why are you doing it? And what are the consequences of that going to be?”
Since then, Roberts has presided over some narrow, unanimous (or nearly unanimous) rulings and some bitterly divisive ones. And so, it’s been hard to tell how seriously he is taking his pledge to lead the Court toward less polarizing decisions. Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics--Louis Brandeis called it “our financial oligarchy”--is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address.
What all this says about the future of the Roberts Court is not encouraging. For the past few years, I’ve been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. But, while Roberts talked persuasively about conciliation, it now appears that he is unwilling to cede an inch to liberals in the most polarizing cases. If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal....
With Roberts apparently content to impose bold decisions on a divided nation on the basis of slim majorities, the question becomes: Is the Court now on the verge of repeating the error it made in the 1930s? Then, another 5-4 conservative majority precipitated a presidential backlash by striking down parts of FDR’s New Deal. In January 1937, Roosevelt also criticized the Supreme Court’s conservative activism in a State of the Union address. The following month, he introduced his court-packing plan. But, at the end of March--thanks to the famous “switch in time” by swing justice Owen Roberts, the Anthony Kennedy of his day--the Court retreated and began to uphold New Deal laws.
One lesson from the 1930s is that it takes only a handful of flamboyant acts of judicial activism for the Court to be tarred in the public imagination as partisan, even if the justices themselves think they are being moderate and judicious. Although vilified today for their conservative activism, both the Progressive and New Deal-era Courts had nuanced records, upholding more progressive laws than they struck down. As Barry Cushman of the University of Virginia notes, of the 20 cases involving maximum working hours that the Court decided during the Progressive era, there were only two in which the Court struck down the regulations. But those two are the ones that everyone remembers. And, during the New Deal era, Cushman adds, we remember the cases striking down the National Industrial Recovery Act and the first Agricultural Adjustment Act, forgetting that the Court upheld the centerpiece of FDR’s monetary policy and, by a vote of 8-1, the Tennessee Valley Authority.
It’s hard to imagine a full-scale assault by the Roberts Court on Obama’s regulatory agenda because, with the exception of Clarence Thomas, the conservatives on today’s Court tend to be pro-business conservatives, rather than libertarian conservatives, and are therefore unlikely to strike down government spending programs (like the bank bailouts and the Troubled Asset Relief Program) that help U.S. business. But it’s not hard to imagine the four conservative horsemen, joined by the vacillating Kennedy, reversing other government actions that progressives care about. Later this term, for example, the Court may follow Citizens United with another activist decision, striking down the Public Company Accounting Oversight Board (nicknamed “Peek-a-Boo”), which was created to regulate accounting firm auditors in the wake of the Enron and Arthur Andersen scandals. If the Court strikes down Peek-a-Boo, even if the decision is narrow enough not to call into question the constitutionality of the Federal Reserve, it may provoke another sharp rejoinder from Obama that turns progressive rumbling against the Court into full-blown outrage....
Read entire article at The New Republic
Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v. Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates. It was precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.
In 2006, at the end of his first term on the Court, Roberts told me and others that he was concerned that his colleagues, in issuing 5-4 opinions divided along predictable lines, were acting more like law professors than members of a collegial court. His goal, he said, was to persuade his fellow justices to converge around narrow, unanimous opinions, as his greatest predecessor, John Marshall, had done. Roberts spoke about the need for justices to show humility when dealing with the First Amendment, adding that, unlike professors writing law review articles, judges should think more about their institutional role. “Yes, you may have another great idea about how to look at the First Amendment,” he said, “but, if you don’t need to share it to decide this case, then why are you doing it? And what are the consequences of that going to be?”
Since then, Roberts has presided over some narrow, unanimous (or nearly unanimous) rulings and some bitterly divisive ones. And so, it’s been hard to tell how seriously he is taking his pledge to lead the Court toward less polarizing decisions. Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics--Louis Brandeis called it “our financial oligarchy”--is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address.
What all this says about the future of the Roberts Court is not encouraging. For the past few years, I’ve been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. But, while Roberts talked persuasively about conciliation, it now appears that he is unwilling to cede an inch to liberals in the most polarizing cases. If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal....
With Roberts apparently content to impose bold decisions on a divided nation on the basis of slim majorities, the question becomes: Is the Court now on the verge of repeating the error it made in the 1930s? Then, another 5-4 conservative majority precipitated a presidential backlash by striking down parts of FDR’s New Deal. In January 1937, Roosevelt also criticized the Supreme Court’s conservative activism in a State of the Union address. The following month, he introduced his court-packing plan. But, at the end of March--thanks to the famous “switch in time” by swing justice Owen Roberts, the Anthony Kennedy of his day--the Court retreated and began to uphold New Deal laws.
One lesson from the 1930s is that it takes only a handful of flamboyant acts of judicial activism for the Court to be tarred in the public imagination as partisan, even if the justices themselves think they are being moderate and judicious. Although vilified today for their conservative activism, both the Progressive and New Deal-era Courts had nuanced records, upholding more progressive laws than they struck down. As Barry Cushman of the University of Virginia notes, of the 20 cases involving maximum working hours that the Court decided during the Progressive era, there were only two in which the Court struck down the regulations. But those two are the ones that everyone remembers. And, during the New Deal era, Cushman adds, we remember the cases striking down the National Industrial Recovery Act and the first Agricultural Adjustment Act, forgetting that the Court upheld the centerpiece of FDR’s monetary policy and, by a vote of 8-1, the Tennessee Valley Authority.
It’s hard to imagine a full-scale assault by the Roberts Court on Obama’s regulatory agenda because, with the exception of Clarence Thomas, the conservatives on today’s Court tend to be pro-business conservatives, rather than libertarian conservatives, and are therefore unlikely to strike down government spending programs (like the bank bailouts and the Troubled Asset Relief Program) that help U.S. business. But it’s not hard to imagine the four conservative horsemen, joined by the vacillating Kennedy, reversing other government actions that progressives care about. Later this term, for example, the Court may follow Citizens United with another activist decision, striking down the Public Company Accounting Oversight Board (nicknamed “Peek-a-Boo”), which was created to regulate accounting firm auditors in the wake of the Enron and Arthur Andersen scandals. If the Court strikes down Peek-a-Boo, even if the decision is narrow enough not to call into question the constitutionality of the Federal Reserve, it may provoke another sharp rejoinder from Obama that turns progressive rumbling against the Court into full-blown outrage....