March 13, 2006

"The Roberts effect."

Terry Eastland (in the Weekly Standard) has words of praise for John Roberts:
Under Roberts the Court has decided 39 cases. Roberts himself has written three opinions. Each was unanimous.... Each is well-written. Concision and clarity distinguish the opinions.... Finally, and not a small point: His opinions are enormously persuasive....

Justices Stevens and Scalia have both complained over the years about the conferences held on the Fridays of weeks with oral arguments. It is then that the justices at least tentatively decide cases, and yet under Rehnquist the justices typically did little more than declare their votes. For Roberts to invite discussion means that Roberts himself has to come to the conference table fully prepared. That's not hard to imagine. But the other justices have to come prepared as well, or risk embarrassment.

Over time, the Roberts effect may produce not only larger majorities and more stable rulings but also a Court that, thanks to conferences that really are conferences, pays more attention to working out the relevant law and less to mere politics. The distinction between law and politics is, of course, precisely what Roberts (and Samuel Alito) insisted upon during their confirmation hearings, and it lies at the heart of judicial conservatism. The prospect of the continuing advancement of that philosophy is a happy one, and a reason to say hail to this particular chief.
Do you believe that high quality writing, more debate among the Justices, and a charismatic leader can squeeze the politics out of judicial decisionmaking? Do you believe that it is only the judicial liberals who allow politics to infuse their decisions? Do you even want all the political sensibility drained out of the opinions?

21 comments:

Art said...

1. Yes-Leadership can squeeze politics out of the decision process..if the leader thinks that's a desirable goal.

2. No-Some conservatives are mostly beyond reason. (Clarence Thomas)

3. Yes.

ShadyCharacter said...

"beyond reason"! I love it...

Tell us art, in addition to Thomas' lack of reason, would you say "... he has been an embarrassment to the Supreme Court.... [and] his opinions are poorly written."

HaloJonesFan said...

#1: "Can"? Well, of course a charismatic leader can do something. Are you asking what he should do?

#2: Yes, Republicans can be as dumb as Democrats.

#3: Yes, the political aspect should be completely divorced from the function of the Supreme Court. That's the whole idea behind lifetime appointments!

Claiming that the Supreme Court should consider political aspects of its decisions leads directly to the kind of "judicial activism" that we're all supposed to hate. And it's the result of laziness on the part of legislators--legislation should be written narrowly and specifically, and without the assumption that the judicial system is going to determine the extent of enforcement.

Ann Althouse said...

Shady: LOL.

My queston 3 reflects my own belief that some political sensibility has a place in constitutional interpretation. I don't think the judges should be working their personal political will, but they should bring a practical understanding of how politics works to the interpretation of a document that sets up political institutions and relationships.

yetanotherjohn said...

If my failing brain remembers correctly, one of the seminal cases, "Marbury v Madison" was very much decided with a finger to the political wind. The court agreed with the president, but the main impact was not on the office holders but that the supreme court was the referee (not the president). So to say that a case should be decided in a political vacumn is silly and non-historical. That said, I think the order of the thinking is key.

Roberts seems to encourage discussion of the case and law as the starting point as opposed to Rhenquists starting point being the disucssion of the outcome (aka the vote). So just from that, Roberts is pushing the court towards reason rather than results.

Now while the reasons are being discussed (before the results have been determined) it is certainly within bounds to discuss the political ramifications. If nothing else, it is a useful part of introducing the concept of 'unintended consequences' into the discussion. The key to me is that 1) their is discussion about the reason before the results are determined and 2) the political results are not seen as a goal, but rather part of the impact of the case.

As to the notion that calling yourself any sort of label (Republican, Democrat, Green, Conservative, Liberal, Moderate, whatever) being able to shield you from some poor intelectual thought, such as "letting politics infuse your decisions" is silly. If Thomas declared himself a democrat, his opinions would not improve or decline. Its the content, not the label that matters.

Gerry said...

"Do you believe that high quality writing, more debate among the Justices, and a charismatic leader can squeeze the politics out of judicial decisionmaking?"

Completely? No. Partially? Absolutely.

At a minimum, it should lead to more consistency from the court, or perhaps coherence would be a better term.

"Do you believe that it is only the judicial liberals who allow politics to infuse their decisions?"

I do not. However, I do think that minimizing the political aspects of the court is a concept that fits very comfortably within the conservative philosophy of how our governance should be, whereas I think that liberalism is a philosophy that is comfortable with a political court. I base that perception on the fact that liberals have, over the past few decades, looked to the courts to help enact their agenda.

"Do you even want all the political sensibility drained out of the opinions?"

Political sensibility? How can anyone be against sensibility? However, I am all for political insensibility being drained from the opinions. It seems likely to me that the best way to acheive this is to minimize politics on the court and leave that primarily for the more overtly political branches of government.

Abraham said...

3. Yes! Please, please, yes! I want the court to stop providing political cover to Congress. Let it make its decisions on the basis of the law only, and let the politicians worry about politics!

brylin said...

After reading some of the comments wherein the proposition was offered that Republican judges were just as political as Democrat judges, I respectfully dissent.

Here's my argument about Democrat judges.

Where's your argument about Republican judges?

gj said...

Under Roberts the Court has decided 39 cases... Each was unanimous.

Is Roberts choosing to release the unanimous opinions first? If so, is that a political act in itself?

brylin said...

Yesterday Paul Mirengoff at PowerLine made the point that liberal Dems are swayed by "critical legal theory" and cannot separate politics from law.

Wade_Garrett said...

They haven't all been unanimous, just the opinions that Roberts himself has written. I would say, let's hold off a bit before evaluating Roberts; three is a small sample size.

If all that they say about Roberts is correct, then he seems to me to be an almost ideal Chief Justice. However, just a few months ago Richard Posner, who is himself oneo the most respected judges in the country, wrote an article in which he said that it was impossible to determine whether ANY of the big cases that have reach the Supreme Court in the past several decades have been correctly decided, because they are so inherently political, and the law in those areas was previously so vague.

faster said...

"Do you even want all the political sensibility drained out of the opinions?"

I think this is the most interesting question, and the answer probably depends on what kind of role you think the Court plays in our government. Personally I think any perception of having ALL the political sensibility removed from opinions would be an illusion. Judges are human beings.

37383938393839383938383 said...

Blackmun betrayed the court with all his political commentary in the text of his opinions ("I'll be gone soon, and abortion will die with me!"). That kind of stuff doesn't happen when Justices actually talk to each other about the issues and try to forge a consensus.

Simon said...

I think that the second paragraph Ann quotes - "[f]or Roberts to invite discussion means that Roberts himself has to come to the conference table fully prepared" - is particularly unfair, insofar as it implies the obvious corollary: if Roberts' willingness to permit debate indicates that he is prepared, Rehnquist's unwillingness to do the same must indicate the opposite, i.e., unpreparedness.

In point of fact, Rehnquist explained exactly why he did not permit free-wheeling debate in his book, THE SUPREME COURT. Rehnquist started from the presumption that the Conference must operate efficiently; to that goal, he added a hypothesis, one that sounds fairly reasonable to me: in his experience, Justices simply did not come to conference without having essentially made up their minds about the case, and so it was really a waste of time to permit free-wheeling discussion amount eight associate justices who were largely unamendable to having their minds changed. Moreover, Rehnquist was a big believer (and this is something I really feel personally indebted to Rehnquist for) in the power of written opinions to change minds: that whatever pursuasion was going to take place, it would take place in the writing where ideas could be fully explored. For that reason, Rehnquist concluded that the most efficient way to run the court was for each Justice to come to Conference and essentially lay out verbally how they would decide the case were they writing the majority opinion, assign the case based on those statements, and then let everybody get writing.

Now, whether one agrees with Rehnquist's premise (perhaps there is a genuinely compelling argument that the Court should waste hours and hours in a nine-way argument that changes nobody's mind), I don't think his conclusion is at all bizarre or unreasonable. Keep in mind: Rehnquist had spent a decade and a half on the Court to observe how conferences ran under the much more latitudinarian Chief Justice Burger; our Fearless Leader is, relatively speaking, making it up as he goes along. I can't help but wonder if, after ten years and innumerable Breyer-Scalia arguments that change nobody's mind, Roberts may regret his decision.

In sum, I'm not sure I can get on board with the idea that more debate at Conference is necessarily going to help, and I am certainly not going to go along with dissing the Chief by implication. He made a reasonable choice based on his observation of past practise; I don't know if it's right or wrong as a call, but I respect that almost nobody was better placed to make that call than him.

Simon said...

"Some conservatives are mostly beyond reason. (Clarence Thomas)"

That's right, Clarence Thomas is beyond reason - if you try to tell him that the due process clause protects the right of homosexuals to have sex, you will not be able to pursuade him that it does, for example.

How terrible! How closed-minded! How unreasonable! How benighted! How "beyond reason"! And just how far do you you think you'd get if you tried convincing Ruth Ginsburg that the Constitution does not protect a right to an abortion, hmm?

The only reason people complain that Judges have made up their minds on some issues is not because they object to a judge making up their mind, but because they don't like the way the judge has come down. Can you imagine a nominee who says he hasn't made up his mind on Marbury, who denied the legitimacy of judicial review? We all agree on that one, don't we. A nominee who hadn't made their mind up on Marbury would not be confirmed but committed. Here's another one we'll all agree on, even if for different reasons: a nominee who hadn't made their mind up on Brown would never see the right side of a floor vote. I think we'd all agree that flexibility and open-mindedness regarding segregation is not something we are desirous of in our judges. And, of course, as far as the democrats are concerned, a nominee who has not made up their mind on Roe - or rather, who has not made it up a certain way - should never get on the bench.

You show me a liberal who claims (as presumably Art claims, given his implied distaste for Justice Thomas' being "beyond reason") to want open-minded judges, and I'll show you a liar.

Roger Sweeny said...

For what it's worth. I was told this story by Bill Andrews, his former student and colleague, and he said it was true.

Ernest Brown was a tax professor at Harvard Law. Since he had also done some research on the constitutional law of the corporate income tax, he was convinced to teach the introductory con. law course when the school found itself short-handed.

At the end of the year, he decided it had been a mistake. "This isn't law," he said, "this is politics."

David Blue said...

Do you believe that high quality writing, more debate among the Justices, and a charismatic leader can squeeze the politics out of judicial decisionmaking?

Mostly, yes. I think you can get to the point where politics in the courtroom are seen as a necessary evil, to be minimised. And that's a good thing.

Never entirely.

On some issues, people are going to be affected by deep and passionate beliefs, or by assumptions they probably shouldn't import, but will. You can no more eliminate this than you can eliminate typ0s.

Also, to be useful you need a background sense of what is happening in the world. What is happening here, really? Who gains? What morass might you be about to get involved in?

In Bush vs. Gore, there was a potentially nasty issue - what if the court decided one man had been elected and the legislature went the other way? The court might have been embarrassed in judging between two branches of government, one of which would have been itself. Justice had not only to be done but to be seen to be done. (I am not claiming the court entirely achieved this.) The court needed to judge not only according to law but also in a way that would maintain its standing. Some thoughts on who might vote how, and whether they might back off, and why or why not, would have been wise.

So you need a sense of what's going on even to stay aloof. And your sense of what's really going on is partly political.

Do you believe that it is only the judicial liberals who allow politics to infuse their decisions?

Of course not. To be human is to make mistakes.

Do you even want all the political sensibility drained out of the opinions?

Mostly, yes. Entirely, no. A Supreme Court that could not be accused of being political because the opinions of the justices revealed no awareness of or interest about the contexts and practical implications of their decisions would be a bad thing, even if it was workable, which it wouldn't be, and even if it was politically possible to create such a court, which it isn't.

Greg D said...

Do you believe that it is only the judicial liberals who allow politics to infuse their decisions?

No. But I believe the "liberals" do it more, do it more blatantly, and try to publicly justify doing it (which the Republicans don't).

Do you even want all the political sensibility drained out of the opinions?

Awareness of how politics works? No.

Decision by judge to impose his / her personal desires and beliefs (including his / her beliefs about right, wrong, and justice) on the rest of us?

Yes, I want that eliminated from the courts. You want to make decisions of right and wrong, morality, ethics, justic, go run for election. If your versions of those matches with "The People's", then they may elect you, and let you do things your way.

And if you can't win elections where you ran on your sense of morality / justice / "fair play", they you sure shouldn't be allowed to force it on everyone else.

vbspurs said...

Do you believe that high quality writing, more debate among the Justices, and a charismatic leader can squeeze the politics out of judicial decisionmaking?

Ja.

Strong leadership, especially after a rather rudderless moment leading up to the death of the late William Rehnquist, can be such a filip to a body of even motivated people.

I would say that the squishy middle which characterised the Rehnquist Court, owes less to the late Chief Justice, than the overriding swing-vote obsession associated with Sandra Day O'Connor.

Though Roberts' stamp is very evident, we'd be remiss if we didn't mention how much more improved the Court's tone has been, since she left.

Do you believe that it is only the judicial liberals who allow politics to infuse their decisions?

Nyet.

What happens is that progressives can refer to a canon of political discourse, which is written down and held up as intellectually superior.

We Conservatives have less need for dogma, but that doesn't mean we are not guided by other considerations, no less rigid.

Do you even want all the political sensibility drained out of the opinions?

Maybe.

Or perhaps all OVERT political sensibility.

That yes, although I understand the followup point you were making.

Cheers,
Victoria

Simon said...

Greg D said...
"[Do I believe that it is only the judicial liberals who allow politics to infuse their decisions?] No. But I believe the "liberals" do it more, do it more blatantly, and try to publicly justify doing it (which the Republicans don't)."

Right, and that isn't inconsequential. I would prefer a Judge who knows that judicial activism is bad but sometimes lacks the strength to resist to a Judge who thinks that judicial activism (by whatever euphemism s/he refers to it) is good, and wallows in it. Ideally, of course, I'd like a judge that knew it was bad and wasn't occaisionally weak, but if that's too much to ask (and for as long as our Judges are put together by God rather than IBM, I suspect it always will be), I'll take Nino over Steven Reinhardt any day.

Matt Johnston said...

Abraham said earlier:

3. Yes! Please, please, yes! I want the court to stop providing political cover to Congress. Let it make its decisions on the basis of the law only, and let the politicians worry about politics!

I whole-heartedly agree!! I think wha the Court needs to do is remove politics as much as possible (I agree with Ann, you can't ignore politics when dealing with consitutional issues) but they also need to chastise Congress for punting to the courts so much. Whenever Congress can't make up its mind, they make some sort of general statement of law or vague proclamation, then leave the courts to sort out the mess. Of course, when the courts make a decision, one side or the other, or both gets all bent out of shape. The Chief and the rest of the Court needs to call them on it.