Bench Memos

NRO’s home for judicial news and analysis.

Rosen, Roberts, and Roosevelt


Ed is right that Jeffrey Rosen seems to attribute promises to Chief Justice Roberts, to sacrifice principle to consensus-building, that can’t be substantiated by anything Rosen quotes Roberts as saying.  Rosen also posits some pretty dubious parallels between today’s Supreme Court and the Court of the “four horsemen” of the 1930s.  So does Richard Posner in a TNR review of a new book on Franklin Roosevelt’s battle with that Court.  But at least Posner thinks it “unlikely” (if “not impossible”) that President Obama will take on the Roberts Court in some concrete, meaningful way–as opposed to whining in a State of the Union address.

Rosen, by contrast, seems to think such a clash could well happen.  Here’s how he ends his article:

It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory. Without being confident either way, I still hope that he has enough political savvy and historical perspective to recognize and avoid the shoals ahead. There’s little doubt, however, that the success or failure of his tenure will turn on his ability to align his promises of restraint with the reality of his performance. . . .  But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well-intentioned but unrestrained chief justices overplay their hands in the past–and it always ends badly for the Court.

For the life of me, I can’t figure out the “always ends badly” bit in that last sentence.  Really?  I’m not sure this has ever been really true, even once–even in cases when the judges truly were out of control.  From the perspective of the justices themselves, and of the Court as an institution, even the Dred Scott case produced only a mild, temporary setback in public esteem for the Supreme Court.  (More’s the pity.)  It is the lament of pro-lifers, and friends of the Constitution more generally, that Roe v. Wade has done remarkably little damage to most Americans’ regard for the Court.  Liberals predicted (or hoped) Bush v. Gore would fatally injure the reputation of the “conservatives” on the Rehnquist Court.  Didn’t happen.  And as for the Hughes Court in the New Deal era, it found itself defended against FDR’s court-packing plan by every major sector of opinion-makers in 1937, notably including liberals who loathed what the Court had been doing: the majority of Democratic leaders in Congress, of liberal newspaper editors, and of the legal academy.

And there’s a lot of differences between 1937 and 2010 anyway, without even considering the merits of the Court’s decisions in recent years.  Difference number one is that we remember 1937, when a direct assault on the Court, whatever it had to recommend it, came a cropper.  The fact that the Court changed its mind about certain legal principles, and thus “saved itself,” doesn’t affect that conclusion.  It’s more than doubtful that the Court-packing plan would have passed in any event.  Difference number two is that Obama is not Roosevelt.  He doesn’t have Roosevelt’s nerve (or was it folly?), Roosevelt’s popularity and dominance of his own party (as he came off a landslide reelection, after all), or a politico-economic crisis of nearly the magnitude of the Great Depression to give him cover for such a bold maneuver.  Under Obama, a far weaker and less effective leader than FDR, presiding over a country in not nearly so deep a crisis, and with popular esteem for the Court substantially unaffected by the Citizens United case, there is zero prospect of a direct confrontation between the president and the justices.  All we’ll get is more talk–and more mediocrities like Justice Sotomayor when vacancies open up.

Unless Barack Obama is even dumber than we all think.


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