David Cole on the “Roberts Court”

by Ed Whelan

In the New York Review of Books, left-wing Georgetown law professor David Cole uses his review of three recent books as the vehicle for providing his assessment of the so-called Roberts Court. I say so-called because I think that the convention of naming the Court after the incumbent Chief Justice often obscures more than it enlightens—and because I think that the current Court is, alas, better understood as the Kennedy Court.

I may be applying the soft bigotry of low expectations, but Cole’s essay is much milder than I expected. Sure, he somehow manages to make his first paragraph about Bush v. Gore. Worse, in contending that the “Court’s five conservatives … relied on a wholly unprecedented theory” of equal protection, he conveniently omits to note that Justice Breyer and Justice Souter agreed with the majority that the Florida supreme court’s recount order violated the Equal Protection Clause. Plus, he repeats the baseless canard that the majority “announced” that it “would apply this [theory] one time only.” And, in his closing section, he complains that the Roberts Court “has been unremittingly conservative” on “access to judicial remedies for legal wrongs.”

But Cole agrees with Laurence Tribe and Joshua Matz (authors of Uncertain Justice: The Roberts Court and the Constitution) and Mark Tushnet (author of In the Balance: Law and Politics on the Roberts Court) that, as Cole puts it, “the reason so many cases are decided 5-4 is not so much that the justices are partisan or political in any simple sense, but that the cases pose genuinely close questions of competing values on which conservatives and liberals often disagree.” Indeed, contrary to the common caricature of the Court as conservative, Cole provides his own summary of cases in which the “Roberts Court” has “issued important decisions reaching liberal outcomes”:

It has affirmed the rights of married gays and lesbians to receive federal benefits, of prisoners to be free of overcrowding, of foreign detainees at Guantánamo to judicial review, and of criminal defendants to have effective assistance of counsel in negotiations over guilty pleas. The Court upheld Obamacare, and struck down Arizona’s anti-immigrant law that would have imposed onerous penalties on foreign nationals here who overstayed their visas.

It has protected the rights of unpopular speakers, invalidating laws prohibiting the depiction of animal cruelty, the sale of violent video games to minors, and lying about one’s military honors. This past term alone, the Court required police to obtain warrants to search cell phones of arrestees, affirmed the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from power plants, and struck down a Florida rule that permitted execution of intellectually disabled defendants with IQs over 70.

The third book that Cole refers to is Bruce Allen Murphy’s biography of Justice Scalia. Citing the book as “underscor[ing]” the “complex dynamics of Supreme Court decision-making,” Cole embraces Murphy’s thesis that Scalia “has had limited influence on the Court’s results” and has been “a court of one.” There is plenty of room for different views on that matter, and I haven’t faulted Murphy for advancing that thesis. (Anyone doing so at length, though, ought to explore whether and when it’s legitimate for a justice to compromise his legal views in order to build a consensus; as usual, Murphy is not an intelligent guide.) 

Cole notably doesn’t endorse Murphy’s cartoonish account of how Scalia’s politics and faith have supposedly influenced his decisionmaking. Cole’s statement that the “most engaging parts of [Murphy’s] book are, ironically, the many lengthy quotations from Scalia” would seem to reveal his fatigue with Murphy’s tedious, tendentious, and gaffe-filled screed. (Cole, I’ll note, makes an error of his own when he states that Scalia’s criticism of Justice O’Connor in an abortion case came in “his very first term on the Court”; the case he quotes from was decided in 1989, at the end of Scalia’s third term.)

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