There were some exceptions. Roberts managed to steer the Court toward narrow, often unanimous opinions in business cases, which now represent 40 percent of the Court’s docket. (Though this didn’t require him to significantly compromise his views, since most of these cases were decided in a pro-business direction.) And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision rejecting a broad constitutional challenge to the Voting Rights Act and instead deciding the case on technical grounds. For those who wanted to believe that Roberts was a genuine conciliator, this was a powerful piece of evidence. Like others, I praised his performance in the case as an act of judicial statesmanship.
But, in retrospect, the ruling may have been less statesmanlike than it appeared. According to a source who was briefed on the deliberations in the case, Anthony Kennedy was initially ready to join Roberts and the other conservatives in issuing a sweeping 5-4 decision, striking down the Voting Rights Act on constitutional grounds. But the four liberal justices threatened to write a strong dissent that would have accused the majority of misconstruing landmark precedents about congressional power. What happened next is unclear, but the most likely possibilities are either that Kennedy got cold feet or that Roberts backed down. The Voting Rights Act survived, but what looked from the outside like an act of judicial statesmanship by Roberts may have in fact been a strategic retreat. Moreover, rather than following the principled alternative suggested by David Souter at the oral argument--holding that the people who were challenging the Voting Rights Act had no standing to bring the lawsuit--Roberts opted to rewrite the statute in a way that Congress never intended. That way, Roberts was still able to express his constitutional doubts about the law-as well as his doubts about landmark Supreme Court precedents from the civil rights era, which he mischaracterized and seemed ready to overrule.
The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held--far more plausibly--in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint.
There is, of course, a charitable explanation for why Roberts took the conciliatory approach in one case but not the other: namely, that he felt the principles involved in Citizens United were somehow more important and therefore less amenable to compromise. As he told me in our 2006 interview, he has strong views that he, like his hero John Marshall, is not willing to bargain away. Marshall, Roberts said, “was not going to compromise his principles, and I don’t think there’s any example of his doing that in his jurisprudence.”
But a less charitable explanation for the difference between the two cases is that Roberts didn’t compromise on Citizens United because, this time, he simply didn’t have to. Kennedy was willing to write a sweeping opinion that mischaracterized the landmark precedent Buckley v. Valeo by suggesting that it was concerned only about quid pro quo corruption rather than less explicit forms of undue influence on the electoral system. (Congress had come to the opposite conclusion in extensive fact-finding that Kennedy ignored.) As Stevens pointed out in his powerful dissent, the opinion is aggressively activist in its willingness to twist and overturn precedents, strike down decades of federal law, and mischaracterize the original understanding of the First Amendment on the rights of corporations. “The only relevant thing that has changed” since the Court’s first encounter with McCain-Feingold in 2003, Stevens wrote, “is the composition of this Court”--namely, the arrival of Roberts and Samuel Alito.
Some of Roberts’s liberal colleagues have suggested that Roberts is a very nice man but that he doesn’t listen to opposing arguments and can’t be persuaded to change his mind in controversial cases. If so, he may have thought he could produce a unanimous court by convincing liberals to come around to his side, rather than by meeting them halfway. In the most revealing passage in his concurrence in Citizens United, he wrote that “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” But the great practitioners of judicial restraint had a very different perspective. “A Constitution is not intended to embody a particular economic theory,” Oliver Wendell Holmes wrote in his most famous dissent, in Lochner v. New York. “It is made for people of fundamentally differing views.” Holmes always deferred to the president and Congress in the face of uncertainty. He would never have presumed that he knew the “right” answer in a case where people of good faith could plausibly disagree.
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.
Print
Given that almost literally every American political or legal observer (including most of the voting citizenry) other than a small clique of legal journalists such as Rosen expected Roberts to behave in office exactly as he has, the interesting question here is not what happened to John Roberts. Rather, the interesting question is why Rosen et al, who are generally among our media's most perceptive journalists and finest writers, could have so badly misconstrued the obvious reality of ideological conservatism among jurists like Roberts.
There was never any mystery here; Roberts was a committed conservative ideologue in college, in law school, in his early legal career, and on the bench. Then ... view full comment
Given that almost literally every American political or legal observer (including most of the voting citizenry) other than a small clique of legal journalists such as Rosen expected Roberts to behave in office exactly as he has, the interesting question here is not what happened to John Roberts. Rather, the interesting question is why Rosen et al, who are generally among our media's most perceptive journalists and finest writers, could have so badly misconstrued the obvious reality of ideological conservatism among jurists like Roberts.
There was never any mystery here; Roberts was a committed conservative ideologue in college, in law school, in his early legal career, and on the bench. Then, when nominated, he spent a few hours telling Congress that he was not really a conservative ideologue. It was as if Ron Paul had been nominated to be chairman of the Federal Reserve, and he testified in his confirmation hearings that he didn't really believe in destroying the Fed and returning to the gold standard. Surely, Daniel Gross and Paul Krugman would not then spend three years giving Chairman Paul the "benefit of the doubt" as he dismantled the Fed and moved toward restoring the gold standard and then write lengthy exegeses of how Paul had changed his views since his confirmation. Yet that is exactly what Rosen and several other prominent legal writers have done with regard to Roberts.
The notion of "benefit of the doubt" applies only when there are grounds for doubt, and in Roberts' case, there has never been any doubt. I hope Rosen and his peers take some time to examine why they, alone among America's citizens, were duped by Roberts' obviously false confirmation testimony. Is this a result of too highly valuing spoken testimony over merely documentary evidence to the contrary? Is this a result of a failure to recognize that conservatism actually is an ideological movement? Whatever the cause, I hope Rosen and his peers will engage in a bit of self-examination with regard to their misjudgment of Roberts.
I don't see any comparison between the substantive due process rulings in the Roosevelt era and the more ad hoc rulings in the modern era. Indeed, I don't see a common thread among the "conservative" rulings in the modern era, which may explain Cohn's failure to identify one. Without a doubt the 1930s witnessed an historic shift of power from Wall Street to DC, and the "conservative" members of the Court believed it their duty, to class as well as to conscience, to impede that shift. What shift in power is occurring today? Indeed, that's the whole point of campaign finance laws (among others): there is no distinction between Wall Street and DC. So what explains today's "conservative" C ... view full comment
I don't see any comparison between the substantive due process rulings in the Roosevelt era and the more ad hoc rulings in the modern era. Indeed, I don't see a common thread among the "conservative" rulings in the modern era, which may explain Cohn's failure to identify one. Without a doubt the 1930s witnessed an historic shift of power from Wall Street to DC, and the "conservative" members of the Court believed it their duty, to class as well as to conscience, to impede that shift. What shift in power is occurring today? Indeed, that's the whole point of campaign finance laws (among others): there is no distinction between Wall Street and DC. So what explains today's "conservative" Court? A Roman Catholic's (most are RC) preference for/comfort with concentration of power? The belief that the interests of "corporations" coincides with the interests of real people? Hasn't the economic implosion at least proven to everybody that what's good for General Motors isn't necessarily what's good for America - or, more accurately, that General Motors, the corporation, doesn't know what's good for itself much less what's good for America. Then again, maybe that's the point: other than power (not only the power to nullify acts of Congress but the power to appoint the President), today's "conservative" Court has no bearings.
Other than the power of authority, ideological conservatism has no bearings. That is its whole purpose and point. The conservative Supreme Court justices are but the movement's loyal soldiers on the bench. They have no more fealty to the body of American jurisprudence they are appointed ostensibly to serve than would a Leninist or a spy.
Other than the power of authority, ideological conservatism has no bearings. That is its whole purpose and point. The conservative Supreme Court justices are but the movement's loyal soldiers on the bench. They have no more fealty to the body of American jurisprudence they are appointed ostensibly to serve than would a Leninist or a spy.
Can the Supreme Court make a precedent so big it can't lift it? Seems that Mr. Rosen is saying that there is some larger force of public or political opinion that can affect the Court if it moves in the wrong direction (i.e. "tarred"). I hope not. What about the fact that after Citizens United, a movie maker like Michael Moore can make a purely political movie favoring his pick for election and then deduct from his adjusted gross income the "campaign contribution" cost of the movie after no one but the news media and Youtube play it over and over again?
Can the Supreme Court make a precedent so big it can't lift it? Seems that Mr. Rosen is saying that there is some larger force of public or political opinion that can affect the Court if it moves in the wrong direction (i.e. "tarred"). I hope not. What about the fact that after Citizens United, a movie maker like Michael Moore can make a purely political movie favoring his pick for election and then deduct from his adjusted gross income the "campaign contribution" cost of the movie after no one but the news media and Youtube play it over and over again?
Rhubs: it is hubris and nothing else. When Chamberlaine came back from Munich and said, "Mr. Hitler is a man I can trust", and when Bush looked into Putin's eyes and peered into his soul, you see the hubris of man pretending to be Superman. And so it is with anyone involved in these silly hearings, or commenting on them.
In a different context, and a past life, I was involved in the vetting of candidates for arbitral panel appointments. We read what they wrote and based our judgement as to the soundness of their judgement on the body of their work, rather than on interviews. In fact, the industry and other interests involved would have had our heads on a pike outside the arbitration halls ... view full comment
Rhubs: it is hubris and nothing else. When Chamberlaine came back from Munich and said, "Mr. Hitler is a man I can trust", and when Bush looked into Putin's eyes and peered into his soul, you see the hubris of man pretending to be Superman. And so it is with anyone involved in these silly hearings, or commenting on them.
In a different context, and a past life, I was involved in the vetting of candidates for arbitral panel appointments. We read what they wrote and based our judgement as to the soundness of their judgement on the body of their work, rather than on interviews. In fact, the industry and other interests involved would have had our heads on a pike outside the arbitration halls if we had come the same sort of sloppy work that legal academics do in respect of Supreme Court Justices.
Well, based on this picture he looks like a secret stoner to me. He can't be all bad.
Well, based on this picture he looks like a secret stoner to me. He can't be all bad.
My apologies to Mr. Rosen, commenter and expert on all things legal. I may have become enamored with Cohn's blog in TNR, but I do realize there are other great contributors. My work encompasses both fields, and I appreciate both contributors equally.
My apologies to Mr. Rosen, commenter and expert on all things legal. I may have become enamored with Cohn's blog in TNR, but I do realize there are other great contributors. My work encompasses both fields, and I appreciate both contributors equally.
By Jove, I think he's got it. Now who's going to stop J.R.?
By Jove, I think he's got it. Now who's going to stop J.R.?
@mlottman: "Will no one rid me of this meddlesome judge"?
@mlottman: "Will no one rid me of this meddlesome judge"?
"Some of Roberts’s liberal colleagues have suggested that Roberts is a very nice man but that he doesn’t listen to opposing arguments and can’t be persuaded to change his mind in controversial cases. If so, he may have thought he could produce a unanimous court by convincing liberals to come around to his side, rather than by meeting them halfway." Sounds like a conservative version of Obama, who can't imagine anything but liberal freedom-squashing nonsense (that doesn't excuse conservatives from their freedom-squashing nonsense). Obama actually believed that, after he was elected, he could convince enough "stupid" conservatives (and that is what liberals think of conservatives; that's ... view full comment
"Some of Roberts’s liberal colleagues have suggested that Roberts is a very nice man but that he doesn’t listen to opposing arguments and can’t be persuaded to change his mind in controversial cases. If so, he may have thought he could produce a unanimous court by convincing liberals to come around to his side, rather than by meeting them halfway." Sounds like a conservative version of Obama, who can't imagine anything but liberal freedom-squashing nonsense (that doesn't excuse conservatives from their freedom-squashing nonsense). Obama actually believed that, after he was elected, he could convince enough "stupid" conservatives (and that is what liberals think of conservatives; that's obvious just from reading TNR) to come around to his way of thinking. What part of "Congress shall make no law ... abridging the freedom of speech..." is unclear? It doesn't say that Congress shall only make "sensible" laws that abridge freedom of speech, it says "no law." Honest people of average intelligence can read it and understand what it means. There is a lot else in the 1st Amendment that is routinely ignored by government, too, like "...to petition the Government for a redress of grievances."
Dale Ogden, Libertarian, 2010 Candidate for Governor of California;
http://www.daleogden.org
http://www.daleogden.net
Dale: I don't think anyone here really thinks all "conservatives" - whatever that means - are stupid. I do think that, at least in the last fifty years, most people who profess "conseravative" views tend to say really stupid, self-serving and hypocritical stuff, but it does not mean that they really are stupid. Most of the time, they take the rest of us for fools (see Karl Rove), but that is not the same thing.
Now, sometimes, people say stupid things and, conservative or liberal, one is compelled to call them on it.
For example, this gem of yours,
"What part of "Congress shall make no law ... abridging the freedom of speech..." is unclear? It doesn't say that Congress shall only make "sen ... view full comment
Dale: I don't think anyone here really thinks all "conservatives" - whatever that means - are stupid. I do think that, at least in the last fifty years, most people who profess "conseravative" views tend to say really stupid, self-serving and hypocritical stuff, but it does not mean that they really are stupid. Most of the time, they take the rest of us for fools (see Karl Rove), but that is not the same thing.
Now, sometimes, people say stupid things and, conservative or liberal, one is compelled to call them on it.
For example, this gem of yours,
"What part of "Congress shall make no law ... abridging the freedom of speech..." is unclear? It doesn't say that Congress shall only make "sensible" laws that abridge freedom of speech, it says "no law.""
belongs in the Pantheon of idiotic remarks, right next to "Mission Accomplished", "dead or alive" and "bring 'em on". In its simplistic idiocy, the statement belies one of two things: either you are blindingly, blitheringly idiotic (possible, but I reserve judgement), or you take the rest of us as such. In neither case your post here does or ought to merit serious rebuttal. However, given that I wrote a paper on this very subject in my second year political philosophy course (a quarter century ago), I wonder if an undergraduate's response to your silly little observation might suffice.
After all, a conspiracy could be made up of nothing but "speech"; and yet, conspiracy crimes run up and down the polity like candy in a Sugar Mountain store. Death threats, my darling little conservative idiot, are also speech and no less illegal for that (legitimately so). The old stand-by - even Mill the otherwise absolutist thought this one had lots of merit - screaming "fire" in a crowded theatre when there is none and that leads to mischief - or more - is a serious crime, and again, it is speech as speech can be. I know this is difficult for a conservative to comprehend, because lies and libels and slander are the stuff of conservative political thought and action, but really, libel is speech and Congress may, easily, abridge it. And, of course, Congress has exclusive authority over copyright protection and, frankly, if copyright protection is not abridging freedom of speech, I wonder what is. And the list goes on, and on.
But, of course, you would lose in a "Who's Smarter Than a Fifth Grader" match, or to a third-grader for that matter, for any child who studies civics knows that a constitution - yeah, that pesky little thing - is not a series of watertight compartments. It is an organic thing; each and every part of it relates to the other parts. And so - here's the civics lesson, you little lesion - Congress may make laws to protect the Constitution and the polity, and these may limit *not* necessarily what is said, but the circumstances of its saying: no porn in kindergartens and no unlimited funding for political machines on election day. And so on. In fact, you conservative oiks go into orgasmic spasms quoting the old adage, "The Constitution is not a suicide pact" while pissing all over the fourth, the fifth and the eighth amendments; but God forbid the same essential principle be applied to the first and the second ...
You see, if you don't say stupid things, people wouldn't think you're stupid.
Fogged in, just to pile on, for the fun of it:
If "honest people of average intelligence can read it and understand what it means," the you tag yourself as either dishonest or of less than average intelligence. At no time in history, from the invention of the idea of "freedom of speech," through the time of its embodiment in the First Amendment, and through all the subsequent application and interpretation thereof by the courts of the United States to the present day has "freedom of speech" ever been understood to mean the right to say anything at all that one cares to say at any time and any place without regard to the consequences of any and every kind. Icarus gives us but a few examples. ... view full comment
Fogged in, just to pile on, for the fun of it:
If "honest people of average intelligence can read it and understand what it means," the you tag yourself as either dishonest or of less than average intelligence. At no time in history, from the invention of the idea of "freedom of speech," through the time of its embodiment in the First Amendment, and through all the subsequent application and interpretation thereof by the courts of the United States to the present day has "freedom of speech" ever been understood to mean the right to say anything at all that one cares to say at any time and any place without regard to the consequences of any and every kind. Icarus gives us but a few examples. So, if you want to understand what the Constitution means, you have to know something about what freedom of speech has been understood to mean through time. The words themselves, shorn of any historical and cultural context, can be interpreted in dozens of ways all of which would be wrong. For example, a literal reading might say that it applies only to the spoken word as can be heard by those within earshot without any sort of electronic amplification or long-distance transmission. By that logic, you have no freedom to say anything at all by radio or on television or by any reproduced means. Yet, surely that is not what we understand freedom of speech to mean and never have.
As for conservatives being stupid, it's a toss-up between stupid, insane, and so corrupt that they will say any preposterous thing that serves their interests, the sorts of things that no sane person of average intelligence could possibly believe -- say, that we can cut taxes and tax revenues will generally go up, just to give one example. In the case of Bush, I would say stupid and corrupt. In the case of Cheney, insane and corrupt. In the case of Scalia, just corrupt.
...It doesn't say that Congress shall only make "sensible" laws that abridge freedom of speech, it says "no law." ...
Dude: think before you leap (write); and maybe look a thing or two up before you say such things.
...It doesn't say that Congress shall only make "sensible" laws that abridge freedom of speech, it says "no law." ...
Dude: think before you leap (write); and maybe look a thing or two up before you say such things.