Making Sense of the Supreme Court

Tom Goldstein has a nice post on SCOTUSBlog explaining why almost everythign you read about the Supreme Court is wrong.  I say “almost” because many of his points have been made on this blog repeatedly (see, e.g., here and here).  Among other things, he notes that ideological partisans overstate the degree to which the Court veers to one direction or another, and explains why claims that the Roberts Court is particularly right-wing or “pro-business” are vastly overstated.  I have some quibbles with his analysis here and there, but his post remains a useful reality check on much of the rhetoric we heard surrounding the Kagan confirmation hearings are misleading if not plain wrong.

I have a slightly different take than Goldstein on the extent to which the Roberts Court remains, by and large, a “minimalist” court, and how Citizens United fits in to that formulation.  As a general rule, this remains a court that tends to rule narrowly, and this is largely because the Chief Justice, Justice Alito, and sometimes Justice Kennedy have a preference for narrower rulings and smaller steps.  But narrow rulings are not always possible.  Sometimes the legal questions cannot be neatly divided.  In such cases I think the Chief Justice has shown a willingness to stretch the law in order to decide a case narrowly, as occurred in the NAMUDNO voting rights case, so long as such a holding will unify the Court.  Where a strained, narrow ruling will not unify the Court, however, he will opt for what he sees as the more correct holding instead of adopting a narrower holding for a narrower holding’s sake.  Citizens United is a case in point, for while there were ways in which the case could have been decided on narrower grounds, the dissent made quite clear the decision would have remained 5-4.

Another point I would make, that I have made before, is that a greater proportion of the Court’s right-leaning decisions have been the sort that are correctable by Congress.  So, for instance, controversial cases like Exxon v. Baker (punitive damages), Ledbetter (statute of limitations for equal pay claims), and the recent arbitration cases that Senator Franken is concerned about, are all reversible by legislative action.  Indeed, Ledbetter has already been reversed.  The larger left-leaning decisions, on the other hand, have been constitutional decisions that Congress cannot reverse.  See, for example, Boumediene, Kennedy v. Louisiana, and Graham v. Florida, just to name a few.  Obviously there are exceptions — Congress can’t overturn Citizens United or Heller, but it can reverse Massachusetts v. EPA (other than it’s standing holdings) — but I think this is a fair generalization of how the Roberts Court has behaved thus far.

Of course all of this is subject to revision.  The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court.  But I think, at present, we can characterize the Roberts Court as a moderately conservative minimalist Court (except when its not).