Bench Memos

Chief Justice Roberts’ Moment of Truth?

Randy Barnett has written a couple of excellent blog posts responding to Jeff Rosen’s recent column about Chief Justice Roberts, the Obamacare litigation, and the revival of the so-called “Constitution in Exile” movement. I recommend both posts, but I would like to highlight just one of Randy’s arguments because it challenges a meme that seems to be getting picked up with more and more frequency. Rosen concluded his column with the following assertion regarding Chief Justice Roberts (italics mine):

This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.  

Randy’s response:

To assert that “conservative” justices may not invalidate legislation sponsored by a “progressive” President, or a Democratic Congress (albeit a prior Democratic Congress) would be to inject a wholly political consideration into what is supposed to be the impartial exercise of judicial judgment.  It would be like saying that, in Game Seven of the World Series, a National league [sic] umpire should shrink the strike zone when the American league players are at bat — if the game is close, and the American league team is behind.  Just to be perceived [b]y American league fans as “fair.” . . . If the justices are perceived by the public as yielding to this overtly political media onslaught, it would fatally undermine the independence of the Supreme Court.  

In Rosen’s world, avoiding 5–4 decisions at all costs is apparently a higher virtue than following the law. But, for the sake of argument, let’s set aside the question whether the law obligated the chief justice to vote a certain way. And let us also stipulate, for the sake of argument, that Rosen is right to place such high value on consensus. Rosen’s assertion that the chief justice would be an ”irredeemable failure” is still a dramatic overstatement.  

First, it ignores the fact that the chief can only directly control his own vote and therefore would only be in a position to flip a 5–4 decision against the mandate to another 5–4 decision in favor of it. If Rosen is really concerned more about the vote counts than the ultimate results, both results would leave identical black marks on the chief justice’s record.  

To the extent that Rosen hopes the chief justice will engage in lobbying of his colleagues reminiscent of the Warren-era court, such a strategy is inherently limited. Even if the chief justice were able to articulate a narrow decision that avoided making any major constitutional ruling (and if there were an obvious route to such a ruling, it is hard to imagine another of the many parties and amici would not have hit upon it), a determined coalition of four liberal justices would still be in a position to foreclose a consensus result simply by rallying around a position they knew none of the conservatives would accept. 

The disproportionate weight Rosen places on this case also suggests he is more concerned about the outcome of the case than progressing toward unanimity. Take, for example, Sackett vs. EPA and Hosanna-Tabor, two of this term’s most important cases that could have been decided 5–4. Both were decided unanimously. Apparently a 5–4 ruling in the Obamacare case would cancel out these significant unanimous decisions. I would be curious to hear Rosen’s explanation.

Most Popular

World

Jared Kushner Was Right

Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More
World

Jared Kushner Was Right

Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More
Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that "Other than slavery, which was a different kind of restraint, [the pandemic lockdowns ... Read More
Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that "Other than slavery, which was a different kind of restraint, [the pandemic lockdowns ... Read More

Snobs or Mobs?

A   lot of us were feeling pretty good about the future of the media in late September of 2004. Dan Rather and the CBS news division had just tried to derail George W. Bush’s reelection campaign with some genuine fake news — based on fake documents — and, in spite of the manful attempts of ... Read More

Snobs or Mobs?

A   lot of us were feeling pretty good about the future of the media in late September of 2004. Dan Rather and the CBS news division had just tried to derail George W. Bush’s reelection campaign with some genuine fake news — based on fake documents — and, in spite of the manful attempts of ... Read More

The Mystery of Robert E. Lee

No one who ever met Robert Edward Lee -- whatever the circumstances of the meeting -- failed to be impressed by the man. From his earliest days as a cadet at West Point, through 25 years as an officer in the U.S. Army’s Corps of Engineers and six more as a senior cavalry officer, and then as the supreme ... Read More

The Mystery of Robert E. Lee

No one who ever met Robert Edward Lee -- whatever the circumstances of the meeting -- failed to be impressed by the man. From his earliest days as a cadet at West Point, through 25 years as an officer in the U.S. Army’s Corps of Engineers and six more as a senior cavalry officer, and then as the supreme ... Read More
U.S.

Zoomers and the Constitution

A 2019 study by the Pew Research Center compared generational views on key social and political issues, focusing on the similarities between Millennials and Generation Z. The topics probed include race relations, diversity, climate change, capitalism, socialism, and the role of government. This last item, ... Read More
U.S.

Zoomers and the Constitution

A 2019 study by the Pew Research Center compared generational views on key social and political issues, focusing on the similarities between Millennials and Generation Z. The topics probed include race relations, diversity, climate change, capitalism, socialism, and the role of government. This last item, ... Read More
World

How Trump Changed U.S. Foreign Policy

On September 16 the editorial board of the New York Times did the impossible. It said something nice about President Trump. “The normalization of relations between Israel and two Arab states, the United Arab Emirates and Bahrain, is, on the face of it, a good and beneficial development,” the editors wrote. ... Read More
World

How Trump Changed U.S. Foreign Policy

On September 16 the editorial board of the New York Times did the impossible. It said something nice about President Trump. “The normalization of relations between Israel and two Arab states, the United Arab Emirates and Bahrain, is, on the face of it, a good and beneficial development,” the editors wrote. ... Read More