Bench Memos

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Remystifying the Court


I agree with what Matthew Franck had to say about the dangers of Chief Justice Roberts’s apparent desire to issue unanimous opinions in order to strengthen public respect for the Court. It put me in mind of the Court’s decision in Casey, in which a plurality of justices decided that overruling Roe would make the Court seem less “legitimate” even if it was an error. “Legitimacy” is a word that pops up a few times in Rosen’s article on Roberts, and Rosen himself has more or less advocated a split-the-difference approach on the partial-birth abortion case as a logical implication of Roberts’s statesmanlike desire for unanimity.

Rosen is right, I think, to say that the justice who takes the most stylistically opposite approach to this one is Antonin Scalia. His famously “bitter” dissents can be seen as an attempt to demystify the Supreme Court—to expose it as a political actor merely pretending to interpret the Constitution. Roberts does not appear to accept this critique. Linda Greenhouse, during his confirmation hearings, remarked that he seemed to be at home and at ease in the world of modern constitutional law. For whatever it’s worth, I think Scalia is right, perhaps even understating the case, and that the last thing our country needs from the Supreme Court is a more Delphic voice.

Tags: Ponnuru


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