30 June 2007
If you define "conservative" as one who "conserves" or "preserves" the status quo and "radical" or "activist" as one who wishes to change the status quo, then you have to conclude that Supreme Court Chief Justice Roberts is a radical activist.
In his confirmation hearings, his rhetoric was that of the conserver of legal precedent. Rewind back in time to 2005. News and op-ed summaries used the "p" word right-and-left.
After this week's decisions -- from overturning a 96-year old Sherman Anti-Trust Act decision to one on public school racial diversity and another on campaign finance -- one has to concede that the Roberts Court is on track to be a radical activist court. The decisions may, arguably, be narrow, but the course is ideologically conservative, pro-business and divisive: 24 of this year's verdicts were 5-4, compared with 11 last year, the most in recent history.
In his confirmation hearings, primarily in a discussion of Roe v. Wade, Roberts endorsed a concept of legal precedent -- stare decisis -- set forth by Sen. Arlan Specter (R-PA). Roberts provided a social justice example of when breaking precedent might be a good thing (benefits outweighing costs) -- educational discrimination. And yet, this week's decision about schools in Washington state and Kentucky seems to pretend that the United States "public school system has already lived up to its Fourteenth Amendment responsibilities" -- when the data clearly show that we have not.
Under questioning by Specter in 2005, Roberts elaborated (emphasis added):
SPECTER: Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?
ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.
So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process...
ROBERTS: I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question.
And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
SPECTER: A jolt to the legal system, a movement against stability, one of the Roberts doctrines.
ROBERTS: If a overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability...
[T]he principles of stare decisis recognize that there are situations when that's a price that has to be paid. Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions.
Those were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable, carried the day in those cases.
Roberts told Sen. Ted Kennedy (D-MA) that "he believes in affirmative action and has volunteered in a program to help prepare minority students for the rigors of law school.... Roberts stressed at his hearings that as chief justice, he would seek to build larger and clearer majorities in Supreme Court decisions."
However, a third of the decisions this year -- Roberts' second -- were 5-4 votes, twice as many as last year and the most in a decade (pdf). Almost half were fully unanimous decisions last year but only 25% were this year. And the Court reversed appellate decisions in almost three-quarters of the cases.
As Emily Bazelon writes in Slate, not only is Roberts proving to be a politically conservative justice, many who trumpeted the "p" word in supporting his nomination in 2005 are silent in 2007, now that their crystal balls have been shown to have been significantly cloudy.
This term, Chief Justice John Roberts fully agreed with Justice Samuel Alito in 92 percent of the nonunanimous Supreme Court cases in which he voted. His rate of total agreement was 89 percent with Justice Antonin Scalia and 85 percent with Justice Clarence Thomas...
John Roberts is proving to be an extremely conservative chief justice... As Adam Cohen put it in the Times last year, Roberts' votes are the product of his "predictable arch-conservatism."
It's not just Roberts who pledged to respect precedent. Associate Justice Samuel Alito did also.
The two men, both appointed by President Bush, voted together almost unanimously: 94%. Here are the Democratic Senators who supported each man's nomination (tip):
Byrd (D-WV), Conrad (D-ND), Johnson (D-SD), Nelson (D-NE)
Byrd (D-WV), Carper (D-DE), Conrad (D-ND), Dodd (D-CT), Dorgan (D-ND), Feingold (D-WI), Jeffords (I-VT), Johnson (D-SD), Kohl (D-WI), Landrieu (D-LA), Leahy (D-VT), Levin (D-MI), Lieberman (D-CT), Lincoln (D-AR), Murray (D-WA), Nelson (D-FL), Nelson (D-NE), Pryor (D-AR), Rockefeller (D-WV), Salazar (D-CO), Wyden (D-OR)
Voting matters, and not just for the Presidency.
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