Bench Memos

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Jeffrey Rosen vs. Chief Justice Roberts


In an essay in the New Republic, Jeffrey Rosen contends that Chief Justice Roberts has failed to live up to his “pledge to lead the Court toward less polarizing decisions.”  What “pledge” was that, you might fairly wonder (and how would such a pledge comport with the Chief Justice’s actual oath of office)? 

Well, it turns out that the supposed pledge is Rosen’s understanding of statements that Roberts made to him in a July 2006 interview.  I have difficulty discerning such a pledge from the many statements by Roberts that Rosen quotes in his 2007 Atlantic article that grew out of that interview.  (See Matt’s excellent post on that article.)  Rosen did paraphrase Roberts as declaring that “he would make it his priority … to discourage his colleagues from issuing separate opinions” and that “he intended to use his [opinion-assigning] power to achieve as broad a consensus as possible.”  He also quoted Roberts as stating, “In most cases, I think the narrower [the definition of legal principle,] the better” as a means of achieving consensus.  But I don’t see how these propositions have somehow transmuted into a “pledge to lead the Court toward less polarizing decisions.”

In his new article, Rosen faults Roberts for not “be[ing] as conciliatory as he promised,” and cites as the “first indications” of Roberts’s “refus[al] to budge from rigid positions in divisive cases” the soaring number of 5-4 decisions in his second term, which ended in the summer of 2007.  But consider this strange paragraph (emphasis added):

That same summer, I asked Justice John Paul Stevens whether Roberts would succeed in his goal of achieving narrow, unanimous opinions. “I don’t think so,” he replied. “I just think it takes nine people to do that. I think maybe the first few months we all leaned over backward to try to avoid writing separately.” In other words, once his first term ended, Roberts faced a choice: In cases he cared intensely about, he could compromise his principles to reach common ground or he could stick to his guns and infuriate his opponents, who would feel they had been played for dupes. On virtually all of the most divisive constitutional topics, from affirmative action to partial-birth abortion, Roberts stuck to his guns.

The first few sentences of this paragraph provide striking repudiation of Rosen’s thesis that Roberts is somehow at fault for failing to generate consensus on the Court.  Justice Stevens explains that the higher degree of unanimity during the first term resulted from the initial effort by the eight associate justices to “lean[] over backward to try to avoid writing separately.”  And he makes the obvious point that unanimity, far from being something that the Chief Justice can achieve on his own, “takes nine people.” 

But Rosen, with his “In other words” transition, fails to acknowledge that Stevens has repudiated his thesis and instead tries to give Stevens’s words a meaning that they can’t possibly bear.  Further, given the composition of the Court, it’s fanciful to imagine that “common ground” was possible on the “most divisive constitutional topics, from affirmative action to partial-birth abortion”; that’s why Rosen is right to call them “most divisive.”  (I also don’t see how the narrower holdings that Rosen proposes for the recent Citizens United campaign-finance case would have attracted votes from any of the dissenters.)  Nor is there any reason that Stevens and the other liberals should “feel they had been played for dupes” in those cases. 

The most meaningful measure of any chief justice is whether he gets the law right and whether, to the limited extent that it is within his power, he leads the Court to get the law right.  There’s ample room for fair debate on these topics.  But that debate isn’t advanced by positing imaginary pledges and by exaggerating the ability of the chief justice to forge consensus on hotly contested issues.

Tags: Whelan


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