Just how radical is the chief justice?

Original Link: http://www.tnr.com/article/politics/roberts-versus-roberts

By Jeffrey Rosen

Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v. Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates. It was precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.

In 2006, at the end of his first term on the Court, Roberts told me and others that he was concerned that his colleagues, in issuing 5-4 opinions divided along predictable lines, were acting more like law professors than members of a collegial court. His goal, he said, was to persuade his fellow justices to converge around narrow, unanimous opinions, as his greatest predecessor, John Marshall, had done. Roberts spoke about the need for justices to show humility when dealing with the First Amendment, adding that, unlike professors writing law review articles, judges should think more about their institutional role. “Yes, you may have another great idea about how to look at the First Amendment,” he said, “but, if you don’t need to share it to decide this case, then why are you doing it? And what are the consequences of that going to be?”

Since then, Roberts has presided over some narrow, unanimous (or nearly unanimous) rulings and some bitterly divisive ones. And so, it’s been hard to tell how seriously he is taking his pledge to lead the Court toward less polarizing decisions. Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics--Louis Brandeis called it “our financial oligarchy”--is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address.

What all this says about the future of the Roberts Court is not encouraging. For the past few years, I’ve been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. But, while Roberts talked persuasively about conciliation, it now appears that he is unwilling to cede an inch to liberals in the most polarizing cases. If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal.

The first indications that Roberts might not be as conciliatory as he promised came during his second term, which ended in 2007. During his first term, which his colleagues treated as something of a honeymoon, the Court had decided just 13 percent of cases by a 5-4 margin. But, in the next term, that percentage soared to 33 percent. (It would fluctuate up and down a bit over the next two years.) What’s more, the 2007 term ended with unusually personal invective, as both liberal and conservative colleagues expressed frustration with Roberts. That year, during the Court’s second encounter with the McCain-Feingold campaign finance law (which it would gut in Citizens United), Antonin Scalia accused Roberts of “faux judicial restraint,” for chipping away at restrictions on corporate speech without overturning them cleanly. Meanwhile, the liberal justices seemed angry that Roberts was refusing to budge from rigid positions in divisive cases. “Of course, I got slightly exercised, and the way I show that is I write seventy-seven-page opinions,” Justice Stephen Breyer told me in the summer of 2007, referring to his angry dissent from Roberts’s 5-4 decision striking down affirmative action in public school assignments.

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.

There were some exceptions. Roberts managed to steer the Court toward narrow, often unanimous opinions in business cases, which now represent 40 percent of the Court’s docket. (Though this didn’t require him to significantly compromise his views, since most of these cases were decided in a pro-business direction.) And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision rejecting a broad constitutional challenge to the Voting Rights Act and instead deciding the case on technical grounds. For those who wanted to believe that Roberts was a genuine conciliator, this was a powerful piece of evidence. Like others, I praised his performance in the case as an act of judicial statesmanship.

But, in retrospect, the ruling may have been less statesmanlike than it appeared. According to a source who was briefed on the deliberations in the case, Anthony Kennedy was initially ready to join Roberts and the other conservatives in issuing a sweeping 5-4 decision, striking down the Voting Rights Act on constitutional grounds. But the four liberal justices threatened to write a strong dissent that would have accused the majority of misconstruing landmark precedents about congressional power. What happened next is unclear, but the most likely possibilities are either that Kennedy got cold feet or that Roberts backed down. The Voting Rights Act survived, but what looked from the outside like an act of judicial statesmanship by Roberts may have in fact been a strategic retreat. Moreover, rather than following the principled alternative suggested by David Souter at the oral argument--holding that the people who were challenging the Voting Rights Act had no standing to bring the lawsuit--Roberts opted to rewrite the statute in a way that Congress never intended. That way, Roberts was still able to express his constitutional doubts about the law-as well as his doubts about landmark Supreme Court precedents from the civil rights era, which he mischaracterized and seemed ready to overrule.

The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held--far more plausibly--in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint.

There is, of course, a charitable explanation for why Roberts took the conciliatory approach in one case but not the other: namely, that he felt the principles involved in Citizens United were somehow more important and therefore less amenable to compromise. As he told me in our 2006 interview, he has strong views that he, like his hero John Marshall, is not willing to bargain away. Marshall, Roberts said, “was not going to compromise his principles, and I don’t think there’s any example of his doing that in his jurisprudence.”

But a less charitable explanation for the difference between the two cases is that Roberts didn’t compromise on Citizens United because, this time, he simply didn’t have to. Kennedy was willing to write a sweeping opinion that mischaracterized the landmark precedent Buckley v. Valeo by suggesting that it was concerned only about quid pro quo corruption rather than less explicit forms of undue influence on the electoral system. (Congress had come to the opposite conclusion in extensive fact-finding that Kennedy ignored.) As Stevens pointed out in his powerful dissent, the opinion is aggressively activist in its willingness to twist and overturn precedents, strike down decades of federal law, and mischaracterize the original understanding of the First Amendment on the rights of corporations. “The only relevant thing that has changed” since the Court’s first encounter with McCain-Feingold in 2003, Stevens wrote, “is the composition of this Court”--namely, the arrival of Roberts and Samuel Alito.

Some of Roberts’s liberal colleagues have suggested that Roberts is a very nice man but that he doesn’t listen to opposing arguments and can’t be persuaded to change his mind in controversial cases. If so, he may have thought he could produce a unanimous court by convincing liberals to come around to his side, rather than by meeting them halfway. In the most revealing passage in his concurrence in Citizens United, he wrote that “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” But the great practitioners of judicial restraint had a very different perspective. “A Constitution is not intended to embody a particular economic theory,” Oliver Wendell Holmes wrote in his most famous dissent, in Lochner v. New York. “It is made for people of fundamentally differing views.” Holmes always deferred to the president and Congress in the face of uncertainty. He would never have presumed that he knew the “right” answer in a case where people of good faith could plausibly disagree.

With Roberts apparently content to impose bold decisions on a divided nation on the basis of slim majorities, the question becomes: Is the Court now on the verge of repeating the error it made in the 1930s? Then, another 5-4 conservative majority precipitated a presidential backlash by striking down parts of FDR’s New Deal. In January 1937, Roosevelt also criticized the Supreme Court’s conservative activism in a State of the Union address. The following month, he introduced his court-packing plan. But, at the end of March--thanks to the famous “switch in time” by swing justice Owen Roberts, the Anthony Kennedy of his day--the Court retreated and began to uphold New Deal laws.

One lesson from the 1930s is that it takes only a handful of flamboyant acts of judicial activism for the Court to be tarred in the public imagination as partisan, even if the justices themselves think they are being moderate and judicious. Although vilified today for their conservative activism, both the Progressive and New Deal-era Courts had nuanced records, upholding more progressive laws than they struck down. As Barry Cushman of the University of Virginia notes, of the 20 cases involving maximum working hours that the Court decided during the Progressive era, there were only two in which the Court struck down the regulations. But those two are the ones that everyone remembers. And, during the New Deal era, Cushman adds, we remember the cases striking down the National Industrial Recovery Act and the first Agricultural Adjustment Act, forgetting that the Court upheld the centerpiece of FDR’s monetary policy and, by a vote of 8-1, the Tennessee Valley Authority.

It’s hard to imagine a full-scale assault by the Roberts Court on Obama’s regulatory agenda because, with the exception of Clarence Thomas, the conservatives on today’s Court tend to be pro-business conservatives, rather than libertarian conservatives, and are therefore unlikely to strike down government spending programs (like the bank bailouts and the Troubled Asset Relief Program) that help U.S. business. But it’s not hard to imagine the four conservative horsemen, joined by the vacillating Kennedy, reversing other government actions that progressives care about. Later this term, for example, the Court may follow Citizens United with another activist decision, striking down the Public Company Accounting Oversight Board (nicknamed “Peek-a-Boo”), which was created to regulate accounting firm auditors in the wake of the Enron and Arthur Andersen scandals. If the Court strikes down Peek-a-Boo, even if the decision is narrow enough not to call into question the constitutionality of the Federal Reserve, it may provoke another sharp rejoinder from Obama that turns progressive rumbling against the Court into full-blown outrage.

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. Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. 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 wellintentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.