There is a long established convention of referring to the Supreme Court in a given era by the name of its Chief Justice. Thus, we have the Marshall Court, the Warren Court, and the Rehnquist Court. But this name is often a misnomer because the Chief was not the most influential member of his Court. Like all other justices, he always has but one vote. Particularly in the modern era, where political scientists can evaluate judges based on ideological scores, the better name for a Court might that of the swing or median Justice. Under this view, we are living currently in the era of the Kennedy Court.
But probably not for much longer. Justice Anthony Kennedy has announced to prospective clerks that he thinking of retiring. Moreover, as I have previously discussed, with rise of partisanship, justices now have every incentive to retire when both the Presidency and the Senate is under the control of the party whose President appointed them. Otherwise the Court may be left short-handed for an indefinite period and they may be replaced by justices of the opposite party when that alignment finally occurs. Kennedy cannot be confident that the Republicans will control the Senate after 2018.
Assuming that, as is likely, Kennedy is replaced by a justice with views like Neil Gorsuch, the Roberts Court will actually become the Roberts Court in more than name, because the Chief Justice will also become the median justice.
I am less critical of Chief Justice John Roberts than many other conservatives and libertarians. I do disagree with some of his decisions, as I disagree with some decisions by every justice, but there are far more that I agree with than disagree. When there is no clear precedent on the subject, like the recent recess appointment case, he generally goes with the original meaning. And even when there is lot of precedent he often slaloms with the skill of a gold medalist through the precedents to move the law toward the original meaning. See Free Enterprise v. Public Company Accounting Oversight Board.
One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.
But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofksy v. Kerry. He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text.
I spent most of my post-King yesterday trying 1) to suspend disbelief; 2) suppress laughter; and 3) explain this to my kids. Epic fail at all fronts. My hunch, or at any rate my fear, is that this will turn out very badly for the Chief—an honorable man, and a capable jurist who really should know better.
We will soon know if the U.S. Senate changes hands, but I’m not one of those waiting with bated breath. I had lunch with a prominent conservative columnist a while back. “It’ll be different in November,” he exulted. “We’ll take the Senate!” “And then what will happen?” I asked. “We’ll pass legislation and send it up to Obama,” he answered. “And then what will happen?” I asked.
My friend thought that the most arrogant and narcissistic President the country has ever seen would blanche before Mitch McConnell. Count me a skeptic. We have gridlock this year, and we’ll very likely have gridlock in 2015, whatever happens in November.
Oh, I know there’s the Senate’s advise and consent role, when it comes to judicial appointments. Conservatives like to pretend that that’s important. All it means is that, with divided government, we won’t see Justice Eric Holder. So we’ll see Justice Elena Kagan. Tell me what’s the difference.
I had been writing a post speculating on why John Roberts might have joined the progressives to uphold Obamacare in the Sebelius case when I came upon the story by Jan Crawford reporting that Roberts had changed his vote in the case. That Roberts changed his vote, of course, does not establish why he did so. But the story does say something about the matter:
But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public. There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. . . . Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint. It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.
It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.
Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.
The suggestion here is the one that I also thought explained the matter. The next two paragraphs are from my planned post:
The most likely possibility in my mind is that Chief Justice Roberts sought to uphold the law as a tax as a means of avoiding striking down the central piece of legislation enacted by the Obama Administration and the Democrats. The idea here is that the Supreme Court and the Chief Justice would be harmed by the negative attacks that would follow the five most conservative justices striking down this liberal legislation.
This motivation is reinforced by the fact that Roberts is the Chief Justice and the Court is known as the Roberts Court. If striking down Obamacare were the signature action of the Roberts Court, and this were deemed a problematic decision (especially by liberal elites), then this decision would harm the reputation of John Roberts most of all.
If this was Roberts’s motivation for the decision, this is obviously improper for a variety of reasons. Most importantly, constitutional decisions are not supposed to be reached out of a desire to enhance either the reputation of an individual justice or the Supreme Court as a whole. The decision is supposed to be based on a justice’s view of the law.
One might add that not only would this decision be based on improper motives, but would also be based on a questionable prediction. Given the unpopularity of Obamacare, and the strong probability that the Republicans will control at least one of the branches of the government after the election, the Court did not have much to be scared of institutionally in terms of political attacks. Instead, the most that Roberts would have to fear is criticisms from a liberal elite, but ones that would have been answered by conservatives and libertarians.
The decision and opinions in the health care cases were bound to be shaped by considerations outside “pure” legal principle—by politics or statesmanship, call it what you will. As it happens, I have a relatively high tolerance for that sort of thing. What strikes me as disappointing about NFIB v. Sebelius is that the statesmanship and politics are so bad.