In the New York Review of Books, former New York Times columnist Anthony Lewis uses the occasion of a review of Jeffrey Toobin’s The Nine to offer a hyperbolic critique of Chief Justice Roberts. Lewis has very little to say about Toobin’s actual book, so I’ll just note here that his general hearty praise sharply contrasts with my own assessment of The Nine (which I offered in a five-part series of posts: 1, 2, 3, 4, 5). Let’s instead focus on Lewis’s attack on Roberts.
Here’s Lewis’s basic argument: Chief Justice Roberts told Jeffrey Rosen in July 2006 that he aimed to work to achieve unanimity. But last term there were eight “critical” 5-4 decisions that were “radical departures from precedent,” all of which “moved toward a more conservative view of law and life.” “In case after case since [his July 2006 comments, Roberts] might have brought the justices together, and did not. So the effort at unanimity cannot be a high priority for him.” Indeed, Roberts is not even “an originalist like Scalia or Thomas but someone determined to read the law and the Constitution to achieve conservative ends.” Why is he “in such a hurry”? Perhaps because “he sees an opening right now to move the law toward what the conservative movement wants.” Perhaps because his background as a litigator means that he’s highly competitive, unreflective, and not used to listening to many viewpoints.
1. It’s rather strange of Lewis to use comments in one interview as the benchmark for assessing Chief Justice Roberts. And, even if one accepts that benchmark (which I certainly do not), there’s no reason to believe that greater unanimity or consensus was achievable.
2. The idea that there were eight “critical” decisions that were “radical departures from precedent” is silly. I don’t think that there was a single such decision. For example, as I discuss here, while it would certainly be fair to note that the Court’s ruling in the partial-birth abortion case (Gonzales v. Carhart) is inconsistent with the Court’s 2000 ruling in Stenberg v. Carhart, the Stenberg ruling was a dramatic, unexplained and indefensible departure from the Court’s usual rules governing so-called facial challenges. The Court in Gonzales v. Carhart was faithful to the Court’s broader precedents (as well as, and more importantly, to principles of judicial restraint) in rejecting Stenberg’s error.
As for Roberts’s opinion on the racial-balancing plans for Seattle and Louisville schools: Let’s set aside Lewis’s empty argument that post-Civil War measures “for the benefit of the former slaves” somehow support the conclusion that the states can discriminate on the basis of race for the benefit of those who aren’t former slaves (or who haven’t themselves been the victims of adverse state discrimination for which the beneficial discrimination is a remedy). Lewis contends that although Roberts “did not say he was overruling Grutter” (the Court’s 2003 ruling permitting the use of race in admissions at the University of Michigan’s law school), “the logic of his opinion seems impossible to square with the [Grutter] majority’s view of diversity as a constitutionally permissible objective in education.” But Roberts’s narrow opinion carefully spells out that Grutter itself said that it was addressing diversity specifically “in the context of higher education” and that “outright racial balancing” is “patently unconstitutional.” For better or worse, Roberts’s ruling leaves Grutter in place. So much for a radical departure from precedent.
The six other decisions Lewis regards as “critical” are on such fundamental and weighty matters as whether resale price maintenance is subject to a rule of per se illegality or to “rule of reason” inquiry and whether (in Lewis’s summary) “reviewing courts must pay deference to the decision of a trial judge removing a juror from a capital trial because he had some concern about the death penalty.”
3. Let’s assume, though, that some or all of these decisions were indeed “radical departures from precedent.” It would at least seem to be of some relevance whether they were rightly decided, but Lewis shows no interest in that question. Instead, he offers an incoherent account of the value of stare decisis, stating with evident approval: “When the Court does change its mind, it usually moves in tandem with public feeling, present or immanent.” This is a dubious assertion, though it’s admittedly hard to contest what an “immanent” public feeling might be. But Lewis doesn’t apply this standard to his eight cases. Perhaps he hasn’t discerned the immanent public feeling on resale price maintenance, or perhaps he won’t face up to the fact that the public feeling on partial-birth abortion varies from his own. Instead, he complains that the supposed overrulings “so quickly and obviously reflected the change in the Court’s membership.” So I guess that means that a Court majority isn’t supposed to set errors right, even if Lewis’s usual test of conformance with present or immanent public feeling is satisfied. Is it too much to suspect that Lewis—the husband, not incidentally, of Margaret H. Marshall, author of the outrageous Massachusetts supreme court ruling imposing same-sex marriage on the people of Massachusetts—is simply desperate to preserve liberal judicial activist rulings?
4. In claiming that Roberts is “someone determined to read the law and the Constitution to achieve conservative ends,” Lewis (like Toobin) obscures the basic distinction between misreading the Constitution to entrench conservative policy preferences and recognizing that the Constitution leaves the broad bulk of policy decisions to the democratic processes for decision. As I developed the point in commenting on Toobin’s book:
Take Toobin’s “central legal issue” of abortion, for example. Very few judicial conservatives maintain that the Constitution prohibits legislators from enacting permissive abortion laws. Most of us instead maintain that the Constitution is substantively neutral on the question of abortion. (My essay here develops these points.) It is, of course, true that overturning Roe and restoring abortion to the democratic processes would make it possible for political conservatives to pursue the goal of enacting laws that provide significant protection to in utero human beings. But it would make it equally possible for supporters of legal abortion to work to enact permissive abortion laws. (Indeed, there are many judicial conservatives who would favor legislative enactment of permissive abortion laws.) As this example illustrates, the goals of judicial conservatives are generally quite modest in reach and do not reflect, or mirror, the policy goals that we would pursue. By contrast, it is the “living Constitution” approach that largely entrenches the Left’s policy preferences in the guise of constitutional rights—and thus deprives future generations of the very adaptability that proponents of living constitutionalism purport to favor.
(Yes, I intend to keep repeating this basic point until everyone understands it.)
5. Roberts hardly seems “in such a hurry” to me. Rather, he seems more vulnerable to criticism for minimalist incrementalism that merely nibbles around the edges of illegitimate precedents. In any event, Lewis’s speculative explanations are implausible. So long as Justice Kennedy is the necessary fifth vote, it is obvious that little significant progress will be made. And no one who has observed Roberts would see him as unreflective and closedminded.