February 2, 2007

"I am not talking about subordinating strongly held views to achieve an artificial consensus...."

"But I am talking about deciding cases on narrow grounds, when that allows broader agreement."

So said Chief Justice John Roberts the other day. I know, perhaps you think it's absurd that I find that an exciting enough quote to make a post out of.

17 comments:

Simon said...

Jim Lindgren has more from the same speech here.

Simon said...

I always think of Bush v. Gore when Roberts starts talking about this subject, because I still believe that Rehnquist, Scalia and Thomas didn't buy the equal protection argument and only signed on for the good and pragmatic reason that a 5-4 decision deciding the case the right way for the wrong reasons was better than a 4-3-2 splintering with a plurality deciding the case the wrong way. Presumably those who agree with the Chief Justice's views would approve of such pragmatic compromises?

hdhouse said...

Why should I be surprised at Simon's response? And that is the root of the issue. Broad or narrow, split, really split or 9-0, .... think of it this way.

Your kid comes to you with an issue..it has a lot of tangents, lots of impact on his life other than any one core issue. If you, as a parent, decide on the one "over-riding" issue all you are doing is opening the door for having to deal with the remaining issues at a later date when they arise in a much worse format.

Face it. Congress writes general laws - not specific and not exact and certainly it is not possible to write legislation that takes into account everything. The Court, when deciding narrowly and addressing issues in a narrow fashion simply pushes off the clarification when it is the only resort to address it.

I think it is laziness.

hdhouse said...

by the way Simon....what is the "wrong way"? For Gore? There was certainly enough crap going on in Florida to get a handle on it and now we know that there was enough crap to make it a certainty...but what is the wrong way? Huh? Simon?

So you make ever decision on matters that impact 100% of the people on your blind and koolaide guiding by the leash by the neo-con idiots? Is that the real agenda on why you oppose or agree? is that your litmus test? not what is best but what is right for the brownshirt right? is that it?

Bissage said...

The Chief Justice said: "But I am talking about deciding cases on narrow grounds, when that allows broader agreement."

How could that statement possibly invite controversy? Last time I checked, the U.S. Supreme Court has a serious job to do. It's not supposed to be an intellectual circle-jerk. I must be missing something.

Here’s a modest proposal. You want to encourage decision on narrow grounds while reducing the number of concurrences and dissents? Take more cases and drop some law clerks. That’ll do it. Look at the states.

Simon said...

Bissage,
Suppose you have a case which raises an extremely and pressingly important legal issue. Is it better to answer the question 5-4, or dismiss the case 9-0 on procedural grounds - an obscure prudential standing fault, maybe? I'm not suggesting that either is correct, only that it's a legitimate question on which reasonable people can and do disagree. Do you think Hamdi was an "intellectual circle-jerk"? What about Furman, where all nine Justices wrote separate opinions as to whether the death penalty was unconstitutional. When the justices are genuinely divided about what the law says, divisions on significant and substantive issues, shouldn't they say so? Wouldn't you have dissented in Korematsu?

As to halving the number of law clerks and increasing the number of cases the court takes, there are two obvious replies to that. The first is that I don't know that it's wise that the court of last resort, tasked with resolving the most difficult legal questions that have divided the Circuit Courts of Appeal and authoritatively interpreting the Constitution of the United States, be rushed. The idea that Justices write dissents because they've got nothing better to do is pretty silly, and the argument that they ought to can the concurrences is a little bit more reasonable, but is still not sensible. And the other point, of course, is that I tend to think that anyone who complains that the court isn't taking enough cases should come armed with some examples where the court denied cert in cases that were clearly certworthy under rule 10(a). Precisely because the Supreme Court has a serious job to do, it should be allowed to do it, calmly and thoroughly.

Too Many Jims said...

Simon,

If what the Chief Justice is seeking is consensus and "one clear and focused opinion of the court" I have no earthly idea why one would immediately think of a case that was decided 5-4 and had six separate opinions. Further the majority (per curiam) opinion in that case contained language that (as you know) some have interpreted to mean that the case has no precedential value.

That said, I think that Bush v. Gore does lay out some of the obstacles that Roberts will face as he embarks on this endeavor. First, the per curiam opinion shows that some Justices (presumabley Kennedy in this instance) really like "big" or "important" reasoning rather than narrow or technical reasoning. Second, he will need to find a way to keep Scalia from writing acerbic concurring opinions that might have the effect of alienating colleagues who might otherwise sign on.

Simon said...

I jump to Bush v. Gore, because in that case, three Justices of the Court have been repeatedly castigated for their willingness to join an opinion deciding the case on grounds that their prior jurisprudence on the subject would not suggest they entirely agreed with. In other words, they did precisely what Roberts is advocating: they set aside personal misgivings to produce a more stable majority, instead of standing on principle and forcing the court into a messy split with the case decided by a plurality.

(I'd also again bang the drum that this does not mean that Roberts is a minimalist).

Simon said...

Sorry, that last comment was addressed to Jim.

vbspurs said...

Quoting from the article:

Roberts' reverence for Marshall, expressed in the current issue of The Atlantic magazine and in a series about the Supreme Court on public television running this week and next, puts him at odds with doctrinaire judicial conservatives.

No, I think it puts him at odds with people who believe a person's politics affects his likes and dislikes DEFINITIVELY.

For such people, Roberts admiring Marshall is unthinkable, because the only criteria THEY use to judge people is, "are we in ideological agreement?".

MSM bias in their writing is not usually a question of shouting it, at least not in the US.

It's subtle. Insidious. Inferred.

Cheers,
Victoria

Alan said...
This comment has been removed by the author.
Alan said...

If you have a subscription to The Economist you might find the December 13, 2006 Lexington column Shrinking Supremes of interest too.

Simon said...

Victoria - agreed. Who are these "them" who believe that "Marshall set the court on an invalid and dangerous path when he established the power of the court to overrule laws passed by Congress"? It seems to me that the number of people who question the validity of judicial review is haltingly small, and is generally limited to people who have very little understanding of legal issues, on either side of the aisle. What the Tribune perhaps means, and is inarticulately expressing, is that conservatives generally believe that it is invalid and dangerous for the court to overrule laws passed by Congress if those laws don't actually violate the Constitution. The problem isn't judicial review, it's making up new Constitutional rules out of whole cloth in order to strike down valid legislation that's the problem.

The Chicago Tribune is clearly hurting for Jan Crawford Greenburg's departure.

Incidentally, it seems to me that the worst culprits of bringing confusion into an otherwise clear opinion by writing a separate concurrence has been O'Connor and Kennedy, followed by Stevens. So it stands to reason that the number of separate concurrences is going to drop.

Bissage said...

Simon,

Whoa there, big fella! I haven’t been punched like that since I got hammered with Sip and called him “Lace Curtain Irish.”

Still, I respect your contributions here, and I believe you’re ranting in good faith, so I’ll respond, though you’ll doubtless be disappointed. I’m no constitutional scholar.

(1) Unanimity is preferable, other things being equal. Apart from that obviousitude, I can’t say which choice is “better.” I might be able to roughly predict what I would be inclined to do, myself, given a specific factual situation, time to research and time to ponder. But even then, I probably wouldn’t. Your first question is also a legitimate question on which reasonable people can have no strong opinion -- even lawyers.
(2) I don’t have any opinion whether Hamdi was an "intellectual circle-jerk."
(3) I don’t have any opinion whether Furman was an "intellectual circle-jerk."
(4) It depends. What’s to be gained?
(5) I don’t know what I would have done in Korematsu.
(6) Did I say any of that? Don’t go all tilting at windmills of your own invention. See, e.g., Lee v. Kemna, 534 U.S. 362, 385, fn. 15, 122 S.Ct. 877, 890, fn. 15 (2002) (ha!).

Chief Justice Roberts was not “talking about subordinating strongly held views to achieve an artificial consensus.” Neither was I.

vbspurs said...

Incidentally, it seems to me that the worst culprits of bringing confusion into an otherwise clear opinion by writing a separate concurrence has been O'Connor and Kennedy, followed by Stevens. So it stands to reason that the number of separate concurrences is going to drop.

Bingo, Simon!

Of course, this will be spun as some kind of Nazi goosestep by a more conservative Court, now that a Nazi like Roberts is in charge, followed at close quarters by Hermann Alito.

But in fact, it's just good administration by the tidy Chief.

Ruth Bader Ginsberg didn't suddenly lose her liberalism, when she votes with the other guys, 9-0.

Cheers,
Victoria

SippicanCottage said...

Bissage, I told you, we aspire to be "two toilet Irish" here. We're just ignorant bogtrotters now.

There's no chance of lace curtain Irish breakin' out over here.

As you were. Nice Yob picture, BTW.

Simon said...

Bissage,
I'm very rarely feeling as hostile as I may come across if I forget to sprinkle my comments with emoticons. ;) This is why we need an Althouse Regulars Convention, you know. ;)

I brought up Hamdi as an example because in that case, you had four opinions, each giving a different answer to the question: Scalia (for himself and Stevens) on one side, Thomas (alone) on the other, O'Connor (for herself, Rehnquist, Kennedy and Breyer) in the middle, and Souter (for himself and Ginsburg) somewhere between Scalia and O'Connor. Remember: this is a case on which hangs the power of the United States Government to detain American citizens, in America, without trial. Scalia and Stevens said "never," Thomas thought (this is a gross oversimplification) "whenever it feels like it," and Rehnquist, O'Connor, Kennedy, Souter, Breyer and Ginsburg thought "sometimes." On such an important question of Constitutional law, might it have been desirable to have an opinion with as many votes as possible? Perhaps, but it seems equally important that the question be decided right, and it doesn't seem an intellectual circle-jerk to write separately when you think the court is deciding the question wrong.