February 5, 2009

John Roberts says: Under Rehnquist "the method of analysis and argument shifted to the more solid grounds of legal argument."

"Whether that 'seismic shift,' as Roberts described it, was a good thing is up for debate, though there's little question that Rehnquist was behind the move."

I'd like to see the whole text of that speech. Why did Roberts say that it might not be a good thing? When I first saw the quote that I put in this post title, I thought: Well, that's typical of how each side characterizes what it is doing. We're the judges who are doing real legal analysis, and those others are result-oriented and pursuing their own personal preferences and acting like a legislature. But apparently, it wasn't one of these we're-good-you're-bad remarks. It sounds as though he probably said that everyone on the Court has switched to writing opinions with carefully elaborated legal arguments, and the difference is not between the liberals and conservatives (and centrists) on the Court, but between the Court now and the Court before the Rehnquist. I was just teaching Griswold v. Connecticut the other day and thinking: They would never write this opinion this way if it came up today. It looks so carelessly slapped together by today's standards, yet you can tell by the tone that they thought they were doing a fine job.

But what was good about the old style of opinion-writing? What are we missing? Without more of the text of the speech, I can only guess at what Roberts may have said, but I'm thinking that what we miss are the opportunities for insight into what made the Justices think about things the way they did. There's an immediacy to those old cases. The reader doesn't feel that a squad of bookish law clerks has replaced all human feeling and intuition with properly scholarly verbosity. All that verbiage distances us and makes the layperson think: It certainly looks like they know what they're doing. In fact, it may be utter nonsense, but good luck figuring that out.

It's tiresome, workmanlike, and uninspiring. In such an environment, who will care much about the role of the Constitution limiting whatever it is government decides to do to us?

If Rehnquist represents something Roberts is ambivalent about, does Roberts aspire to his own seismic shift?

15 comments:

Salamandyr said...

I think he was just trying to dodge the debate about the desirability of Rehnquist's changes, in order to avoid getting sidetracked on a tangential argument to the point he's trying to make.

Ann Althouse said...

Actually, I'm thinking it had to do with wanting to get back to the John Marshall ideal of a single opinion. The clutter of separate opinions from the Rehnquist era is really awful.

Andrew said...

Looking at the article, I don't think that Roberts expressed ambivalence over the new style of opinion writing. I think "up for debate" is the journalist's editorial language. I'd have to see the text of the speech to be certain.

Richard Dolan said...

Interesting. Bear in mind that, immediately before Rehnquist, the major focus of the Suprme Court's constitutional cases were civil rights, beginning with Brown v. Board, and the federalization of criminal procedure. The civil rights cases, particularly in the early stage when Plessey and everything it stood for was being rejected, practically invited an element of moralizing triumphalism -- frankly, it would have been hard to avoid given the realities of the time. Things went off the tracks when that approach and those precedents were applied outside the specific historical context in which they made sense -- Griswold being a good example, with the whole thing culminating in Roe. The strong public and political reaction to Roe, and on the criminal side Furman v. Georgia (1972), was something that was bound to generate a change in the Court's approach as new justices replaced the old. In short, if it hadn't been Rehnquist, someone else would have led the move away from the Court's old way of doing things, but that move was bound to happen.

But I suspect that CJ Roberts would also agree with some of Ann's observations a week or so ago, in the contest of her review of a movie set in a German law school, raising questions about the relationship between law and justice, 'right' as a moral category vs. 'rights' as a legal concept. Law considered purely as an abstract set of logical propositions, to be applied without regard to history or other considerations, is pretty deadening. I think CJ Roberts would agree; whether he would agree that it's teh Court's job to do something about that is a differnt matter.

Paul Zrimsek said...

Whether that "seismic shift," as Roberts described it, was a good thing is up for debate, though there's little question that Rehnquist was behind the move.

Are we sure that's Roberts talking and not the reporter? I can't tell.

Xmas said...

I dunno, I hear some well deserved snark in some of Clarence Thomas's dissents.

http://en.wikipedia.org/wiki/Gonzales_v._Raich#Dissent

Seneca the Younger said...

I only know about this what I read on legal blogs, but isn't it widely debated? Wasn't that what Obama was alluding to when he said he wanted Justices who would use more compassion in their decisions? I kinda thought that was what all the "textial", "strict constructionist", "living Constitution" thing was about?

tim maguire said...

Prof., I hope your second thought is more correct than your first. There is much to be said of a court that puts out two opinions--the majority and the dissent--rather than one that issues four or six opinions with multiple partial concurrences where it's hard to know what weight to give which rationale.

Whereas there is very little to be said for a system that may enlighten you to the inner-workings of this or that justice's mind, but does so at the expense of the constitution and consistency. Frankly, I could really give a crap about their personal opinions and find it deeply offensive as an American when it creeps into their judicial opinion (yes, I'm talking to you Justice O'Connor).

Skyler said...

There's an immediacy to those old cases.

I think that's called emotionalism; a very sad quality when aiming for intelligent writing.

Thomas said...

Generally I think the change has been good. Lawyers should do law.

But there are drawbacks. I'm not going to mention cases, but there are always a couple each term where the result was never in doubt, but nowadays the rationale is strained rather than honest.

Simon said...

Ditto Andrew's comment. I think that's the journalist expressing ambivalence, not our fearless leader.

Nick said...

I was there for the lecture. I got the impression that he was being gracious to the faculty; he had just alluded to some of the lively discussions they had previously had.

TitusSendsSpecialHugs said...

I have to say that I think Alito is a little fruity as well.

I am not one of those gays that thinks everyone is gay and I certainly don't want to claim Alito as one of my own but there is something about him a little queeny.

You know what it is...it is how he moves his head back and forth. It is very femmy.

Tex the Pontificator said...

Mt first reading was the same as Andrew's: that the comment is by the writer rather than Roberts. But if Roberts said it, I would take it as an attempt to deflect many people's reflexive dislike of anything to do with Rehnquist and stay focused on his point about legal analysis. I would not suppose that Roberts is truly ambivalent.

Simon said...

"There's an immediacy to those old cases."

Do you have some particular examples in mind - or a particular era? I find that statement surprising because it's so at odds with my perception of older cases. Black and Jackson were terrific writers, Frankfurter to an extent, too, and Douglas had a superficial glibness that makes me think of Posner (in this sense at least: both styles are impressive when first encountered, but wear thin rapidly); on the whole, though, the bulk of the opinions from earlier times - the late 19th century was the worst, but even the mid-20th century - strike me as turgid and tiring. Some of Brennan's opinions are diamonds, but most are coal: astonishingly unreadable for someone who was thought - and was in fact - so good at persuading his colleagues. I don't know how he persuaded them, but it doesn't seem to have been in the product recorded in the U.S. Reports. In my own view, at any rate.

The only really terrible writer on the court today, by my lights, is Kennedy - but opinions by Scalia, Roberts, Souter, and, in his day, Rehnquist fly off the page. There's an immediacy to them. Dry, technical cases beget dry, technical writing, but I tend to think the court is at least no worse than it ever was.