Unanimity and the Roberts Court:
Here's an interesting discussion on that topic with Jeff Rosen, Kathleen Sullivan, Doug Kmiec, Ken Starr, and Vikram Amar. (via Howard) A few thoughts in response:
First, I don't agree that we have an unusually divided court. I think the current Supreme Court is less divided than the Court has been at most times in its history. What's unusual about the current Court, from a historical perspective, is that it pretty much only takes cases when there is a clear circuit split. That means the Justices tend to take technical cases that are very hard, rather than grand questions of the direction of constitutional law. It's a pretty different docket today than you had 30 or 50 years ago. This magnifies divisions, as two people who basically agree on a topic can always disagree on particulars.
Second, I think Roberts' interest in unanimity mostly reflected his interest in keeping the role of the Supreme Court fairly narrow. Roberts doesn't want the Supreme Court to make enormous bold leaps, and unanimous decisions are usually decisions that don't rock the boat. As you get to a more divided Court, the chances of bold leaps tends to increase. So Roberts may have been thinking that he could limit the power of the Court by pushing the Justices to adopt narrower, unanimous ways of deciding cases.
Finally, I think the recent frustration apparent among the four liberal Justices is partly the result of Roberts being much more party-line than many expected. Roberts cultivated an image as the principled minimalist, but last Term he consistently voted in a conservative direction. If a coin flip always comes up heads, after a while you're gonna wonder about the coin. I would guess the liberal Justices began to think they'd been "had," and their frustration at least partially reflects that.
First, I don't agree that we have an unusually divided court. I think the current Supreme Court is less divided than the Court has been at most times in its history. What's unusual about the current Court, from a historical perspective, is that it pretty much only takes cases when there is a clear circuit split. That means the Justices tend to take technical cases that are very hard, rather than grand questions of the direction of constitutional law. It's a pretty different docket today than you had 30 or 50 years ago. This magnifies divisions, as two people who basically agree on a topic can always disagree on particulars.
Second, I think Roberts' interest in unanimity mostly reflected his interest in keeping the role of the Supreme Court fairly narrow. Roberts doesn't want the Supreme Court to make enormous bold leaps, and unanimous decisions are usually decisions that don't rock the boat. As you get to a more divided Court, the chances of bold leaps tends to increase. So Roberts may have been thinking that he could limit the power of the Court by pushing the Justices to adopt narrower, unanimous ways of deciding cases.
Finally, I think the recent frustration apparent among the four liberal Justices is partly the result of Roberts being much more party-line than many expected. Roberts cultivated an image as the principled minimalist, but last Term he consistently voted in a conservative direction. If a coin flip always comes up heads, after a while you're gonna wonder about the coin. I would guess the liberal Justices began to think they'd been "had," and their frustration at least partially reflects that.
Of course, they weren't really the ones who were "had" - they didn't get to pick Roberts. The stupid Dems (and stupid Specter) were the ones who were "had," not that they tried hard to avoid that.
Very happy to see Prof. Kerr acknowledging that (for better or worse) Roberts has indeed been "much more party-line."
Aren't there data which would permit a factual statement about this? Maybe I'm being simplistic, but can't we just count the various votes and announce what percentage were 5-4, what 6-3, etc.?
Question: What is it about cultivating an image of a "principled minimalist" that precludes a conservative voting record? Seems to go hand-in-hand to me.
The question is not whether Roberts would be a moderate. No one expected that. The question is whether he would be neutral in following the law rather than making the law to his personal preferences. That's quite different, I think.
Why did people have reason to think he would be neutral in following the law? Let's go to the transcript:
Am I wrong in this? Has Roberts been overruling precedents at an alarming rate?
Roberts was a conservative lawyer with a conservative pedigree. He’s a conservative Supreme Court justice. Was there any doubt?
And Rosen is wrong. If you are a professional cyclist, you should choose Eddy Mercxx as your model, not Lance Armstrong. I think even Armstrong (who does not suffer from false modesty) would agree with this.
You comment seems to assume that a judge makes the law according to his preferences only when he explicitly overrules precedents. That is not the case.
So while the Court itself may over time move left or right, split decisions are no measure of that.
Q. What's the difference between a politician and a judge?
A. A $25 robe.
(Reaction of at least one judge upon hearing this joke: "Hey! That robe cost a lot more than $25!")
And, Orin, if a coin keeps coming up heads, don't worry: eventually, when the bet is double-or-nothing, it'll come up tails.
"The Democrats" pushed Souter on you, Questioner?
Could you point to cases where you think the Chief Justice has made "the law to his personal preferences" as opposed to being neutral in following the law? I am not asking to be tiresome, but rather to clarify where you think Roberts has fallen short and "followed the party line" (if you indeed think he has).
For one thing, a 5-4 vote in an ERISA case is not quite the same thing as a 5-4 vote in, say, an affirmative action or abortion case.
For another, a series of 5-4 votes, with the same judges in the majority/minority in each case, is pretty different than a series of 5-4 votes with a different mixture of judges on each side in each case.
As a non-lawyer, but as someone who tries to keep up, I'm not sure I follow your distinctions between umpire (minimalist) [vs activist?] OTOH and liberal/conservative on the other.
Let's take a VC blogger I'm familiar with. While he may demure from these appellations (take them as a hypothetical), I think of him as a anarchist favoring a polycentric constitutional order. Ideologically a libertarian, imagine him as a Justice on the Supreme Court.
Now one might imagine he would overthrow Lochner. Precedents can be overturned under certain circumstances, and I believe he has even argued in print that overturning precedent is not as problematic as often thought. So one might forgive a liberal for thinking his decisions are ideologically biased.
Similarly, a libertarian anarchist might overturn the PATRIOT Act (here we move into the realm of hypothetical, as the particular VC blogger of whom I'm thinking sadly seems to disagree with many of his long-time acquaintances on post-9/11 issues). So one might forgive a conservative for thinking his decisions are ideologically biased.
However, he might respond he has a well developed theory of Constitutional interpretation which is based on legal principles and not on ideology (though of course it might have been motivated and developed with an eye toward his ideology). As such, he sees himself and believes himself objectively to be an umpire, applying the Constitution as written, not merely his preferences. In this regard, he might point to areas where the Constitution forces him to one decision while his personal preferences would have pointed in another direction, for example allowing income taxes even if he thinks "taxation is theft".
So here we have a hypothetical, but easily imaginable, justice who is applying the Constitution based on objective and transparent interpretative principles. One might even test the objectivity of these principles by "guessing" how he would rule in each case in advance (just as you can tell a mathematician is being objective when he keeps getting "4" on adding "2+2", granted, there is much more nuance in legal decision-making). Sometimes he rules as a liberal would prefer; sometimes as a conservative would prefer. But in neither instance is it right to say his decisions are politically motivated. Neither is it correct to say he simply sees the Constitution as a libertarian document and therefore simply rules consistently libertarian, since libertarianism per se can lead to different, more radical, conclusions that objective application of Constitutional principles. Would you say that such a hypothetical jurist is being a minimalist, an umpire, simply applying the Constitution to the law without applying his personal polical preferences? If not, why not?
It seems a mistake to assume that political principles are random, not linked to one another, such that if one is principled one will alternate between "liberal" and "conservative" decisions.
To me it becomes apparent in the "standing" cases, which are invariably result-oriented and mushy. It is amazing lower courts can make heads or tails of the Court's jurisdprudence in this area. But I think the faith-based intitiative standing result, versus affirmative action in schools, is a pretty good indication that one is not being very intellectually honest or consistent while reaching results that are desired from a conservative policy standpoint. Not to say that liberal justices do not fall into this result-oriented trap either (in the area of standing, Justice Stevens is not what I call consistent), but they spend less (no?) time blasting judicial activism from the bench or musing on the judge's role as a neutral umpire who simply "applies" the law without, apparently, any need to interpret it.
I'm not a scholar of such things, but word on the street has been that Roberts has voted for the powerful and against the powerless in every instance where such a distinction can be made. Now, I realize that there are indeed a few plausible explanations for having that an impression. But one highly plausible explanation is that Roberts' conservatism overrides other considerations in his determining the law.
I am perhaps aberrant among the more liberally inclined in that I'd like to have liberally inclined executive and legislative branches which are restrained by a more conservative court. So I'd be fine with a real-life minimalist, and I've no particular bone to pick with Justice Thomas, the conservative anti-minimalist, either. But if the court's not giving parties a fair shot, that just won't do.
Ok, but then it seems we need to define more precisely what's meant by "unusually divided".
(And If I felt like a snarky bastard, which I do, I'd point out that it's the liberals who voted against the REALLY "little guys" in Roe and Casey :)
As I recall, the "REALLY 'little guys'" were not parties in Roe or Casey. The libs could not have voted either before or against them. They were innocent bystanders.
Sweet dreams, Daniel.
So an umpire that consistently calls the pitch an inch off the black is still "calling him as he sees them." The umpire that gives Barry Bonds or Tony Gwynn the 0-2 pitch even though it was on the corner is biased.
I won't be going to sleep until at LEAST after "Dirty Sexy Money" is over. If you're tired, though, I wouldn't blame you if you stopped talking now.
why? it can easily be made into an objective measure which can be verifiable/falsifiable.
just because one political group is more likely to examine certain phenomena doesn't mean the results are biased/false. or if you maintain that it does (to use a recent example), would you also throw out all information that supports the individual rights view of the 2nd amendment because it was research by conservatives? these conservatives obviously found what they were looking for and we all knew what the result would be ahead of time.
No gun control group would do a study like that.
You present two bits of information:
1) Roberts consistently stands opposed to Stevens, Ginsburg, Souter, and Breyer.
2) Roberts claimed to be an umpire, not a ideologue
From which you then conclude, "#1 implies #2 is false"
What an assumption. We ought to consider that BGSS are the four horsemen of the left. Thus #2 implies the BGSS are not moderates but actually ideologues. Thus, #1 is irrelevant.
Using the analogy of an umpire why can't you just say Roberts is following the exact wording of the law. If a "powerless" claimant files on day 3 years and one day when the law limits filing to 3 years it seems you are implying Roberts is heartless to deny the claim. His job is not to do justice but to obey the written law.
Begs the question. Where the written law is clear, the case likely does not ever get to a Supreme Court appellate decision in the first place.
The same ambiguity makes Orin's subsequent post, re "Roberts Umpire-Watchng," unclear and therefore unuseful.
In this post, when I say "conservative," clearly I mean politically conservative. That is a much easier concept, as the flag-burning example shows.
Actually I think one just did. One side bemoaned the heartless application of the law as written (and lost).
So I guess what I'd focus on would be what I'd expect is the small set of cases in which -- as in the flag-burning case -- conservative or neutral principles of adjudication would lead to a politically liberal result. I agree that would be interesting.
I wasn't just suggesting a hypothetical. See Ledbetter vs. Goodyear
As I read it, the question in Ledbetter was whether the receipt of unequal pay was based on a discreet act (the pay decision, as the majority holds), or whether it is a group of individual acts with a cumulative effect (as the minority argues). The distinction itself, between discreet acts and continuous impact violations, is judge made and not in Title VII, as far as I know. Neither opinion cites any statutory language for this distinction. There also was precedent that appeared to support, more or less, each side.
How was the majority acting as a simple "umpire"? This, as with other technical discrimination issues, looks to me like an example where the prior law is not entirely clear, and each political side saw the law clearly through their politically colored glasses to arrive at the interpretation that served their bias.
If you had explained this case to me beforehand, I could have predicted exactly how the judges would have voted on it. And it seems to me, if you think of this as an example of a judge simply following the clear dictates of the law, then you are probably just as biased as the conservatives.
By the way, on this case, I think the conservatives probably had the better argument. Brazemore, the case the petitioner tried to rely on, was a per curiam, and her reliance is on some language in Brennen's concurance to that opinion. As I've said before, unanimous opinions tend to be sloppy. A unanimous concurrence to a per curiam opinion is even more likely to be sloppy and untested.
I think a different definition of conservative, philosophical rather than political, might come unto play. Read the law as narrowly as possible, don't break new law judicially rather than legislatively. Not an umpire here but a traffic cop- go slow.
Absolutely. It seems that some judges, who favor the broad reading that allows the suit to continue, feel their job, as judges, is to do justice, actively reinterpret the exact words of the law to fit into modern society and believe deep pockets will bear pain easier. The philosophically conservatively disposed judges see their job as one that strictly interprets the law exactly as written by legislators or the Constitution and damn the consequences. See Scalia and flag burning. We are nearing a discussion of "activism".
All depends. I'd say that a decision on an ERISA case that held that the federal government had acted contrary to the tenth amendment in interpreting the scope of its powers under ERISA woud be more significant than holding for the defendant in an affirmative action case for lack of standing.
See how easy it is to attack a post when the examples are weak even if the argument is valid? ;-).
In the unlikely case in which someone uses the faith-based initiative standing to challenge an affirmative action case on the basis of standing, we'll see. I may or may not agree.
My reason is that the Court, in order to remedy a very great evil (legal discrimination on the basis of race), made decisions to remedy this evil without regard for their consequences in other areas where they did not necessarily have the angels on their side. I'm not saying this was morally (or even legally) wrong, but I think there can be little doubt that it was done.
As in the famous case of Sandford v. Scott?
Taney delivered an opinion for the Court. There were concurrences and dissents. So, no. A true serial opinion would be more like Chisolm v. Georgia, 2 U.S. 419. In that case, every judge delivered a separate opinion, as appellate courts in England did.