December 7, 2005

The Roberts Court style.

I just read Linda Greenhouse's description's of the "lopsided argument during which the justices appeared strongly inclined to uphold [the] federal law":
[T]he law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."
Roberts seems to have instantly emerged as the dominant voice at oral argument. And he seems to have a way of slamming lawyers in the face with his own clearly stated opinion. Tell me why this is wrong, right now, or forget about it. I hope to see much clearer written opinions from the rejuvenated Court too.


Mark Daniels said...

It was especially interesting to listen to the proceedings from yesterday's session on the law school and military recruitment. It seemed that there was near unanimity of opinion among the justices to rule in favor of the government's position. Roberts' logic was particularly cogent and devastating to the law school's position.

While I dislike proposals for bringing cameras into the Court and wish that they could be gotten rid of in Congress, hearing the audio of the SCOTUS sessions has been interesting and informative. The Court has become such a favorite object of scorn in our society. But it's possible that this slight lifting of the veil will make their rulings more understandable to the public, humanize the institution, and maybe reduce some of the nastiness that often fills people's condemnations of SCOTUS rulings.

Mark Daniels

SarahWeddington said...


I agree. In both this case and Ayotte, Roberts has shown a gift for cutting straight to the issue at hand resolving it. He doesn't pontificate like Breyer or Nino. It's a welcome change. Notwithstanding that he agrees with Nino much of the time.

Also, I don't see why tapes can't be released for ALL cases.

Charles said...

Most colleges seem to welcome corporate recruiters and rarely have I witnessed one being excluded due to some company policy that contributes to pollution, welfare, price gouging, oppression or a social policy. So it boils down an element of the university doesn't like the military part of recruiters. Can you imagine an engineering school refusing Ford, GM, Honda seats at the annual job fair because of their environmental practices? Or permitting them to be heckled while taking corporate research funds that employ professors? The whole thing is laughable to us commoners.

Wade Garrett said...

I like Roberts' style on the bench, and I think that the more the public sees (or hears) the Supreme Court in action in "real time," the more respect they will have for the Court's competence and professionalism. They seem to have such enormous dignity, particularly when compared to Congress and the President!

As a law student, I too hope to see more lucidly written opinions from the Court, though I do not think that any of the justices are poor stylists. Rather, if the Court would publish fewer dissents and concurrences, I think it would help things greatly. When I read old cases, there is the opinion, and perhaps a dissent. There is hardly any of the multiple concurrence, multiple dissent, 3-2-2-1-1 breakdowns that drive us crazy!

Bruce Hayden said...

I am a little surprised. Not that he could do what he did yesterday, but rather that he did so so early in his tenure as Chief Justice.

I really expected him to sit back for awhile before doing this sort of thing.

But then, what is really the point of oral arguments? I would think a big part of it is to sway the judges or justices leaning the other way, and that is probably best done by answering their questions. Esp. at this level, side stepping by concentrating on other facets during one's presentation would not be that effective.

Pooh said...

Mark, I hope you are right, though this case may be an outlier in that the issues are (relatively) simple, and in an area with which most of the public has at least a passing understanding.

I like that CJ Roberts threw the law schools his best fastball (to my mind, a Mariano Rivera-esue fastball...), and gave them an opportunity to swing.

Charles, Wha? Your analogy does not hold. GM, etc. can candition its grant money more or less on anything it pleases, you have no right to be free from private restrictions on speech. The fact that the government may or may not be attempting to restrict speech is what makes FAIR interesting - it's the 'state action' which implicates the first amendment

Wade Garrett said...

Pooh - Oh no, Roberts and another dreaded baseball analogy!

stealthlawprof said...

He cuts to the heart of the issue but does so with a minimum of verbiage. The highlight for me was his killing the line of questions about using university facilities with three words -- "separate but equal." It is not just the lawyers who can get slammed.