December 6, 2006

"John Roberts, Centrist."

Jeffrey Rosen writes about the Supreme Court's "partial-birth" abortion case, over at TNR, where they title the article "John Roberts, Centrist" and display an excellent caricature of our high court hero. But what about our other high court hero? He's not in the title, but there's plenty about Justice Stephen Breyer:
In the oral argument, there was a dramatic gap between the liberal and conservative justices about how broadly to create a health exception. Roberts suggested that a marginal increase in safety wasn't enough to override Congress's interest in preventing D&X abortions as long as the D&E procedure was nearly as safe in most cases. Justice Stephen Breyer, by contrast, wondered aloud whether the Court might allow D&X abortions "only where appropriate medical opinion finds it necessary for the safety or health of the mother." And, in 2000, Breyer wrote for the Court emphasizing that D&X abortions had to be allowed as long as a "significant body of medical opinion" believed they might be safer for some patients. The Court had previously said the abortion itself had to be necessary for the woman's physical or psychological health; Breyer expanded this to say that, if a woman chose an abortion, she was entitled to the safest one in all circumstances.

If Breyer applies the same lax standard in this case, he risks calling into question his hard-earned reputation as the justice most deferential to Congress--since a minority of doctors believe that the D&X procedure is always safer than D&E. Between 1994 and 2000, Breyer and Ruth Bader Ginsburg voted to strike down fewer federal laws than any other justice; and, in his recent book, Active Liberty, Breyer argues that judges should show restraint and modesty in the face of national disagreement, deferring to the decisions of elected representatives--especially those in Congress--in order to promote democratic deliberation. There was something unseemly about Breyer's announcement that he had asked his law clerks to tally up the numbers of medical experts who testified for and against the partial-birth ban at every stage in the case. He seemed to be allowing his progressive weakness for the rule of experts to trump his devotion to judicial deference to Congress. By allowing the federal ban to be enjoined only for specific categories of medical conditions in which substantial numbers of doctors believe that D&X abortions are safer than D&E abortions, Breyer could preserve his record as a principled defender of judicial restraint.
But the main point of the article is that John Roberts will find -- Rosen prompts him to go for -- a compromise, a narrow basis for decision that could bring the Court together over this devisive issue. The idea is that the new Chief ought to see his role in terms of avoiding divisions and that his success will be defined by his ability to achieve unanimous decisions:
Roberts's hero, Chief Justice John Marshall, convinced a group of unruly colleagues to converge around narrow, unanimous opinions that appeared to give a victory to one side while also acknowledging the claims of its bitter opponents. If Roberts follows Marshall's example and finds a deft compromise in the abortion wars, he will deserve the thanks of a grateful nation. And, if he fails, his vision of a Court that governs best when it governs most narrowly will be off to a bumpy start.
But this is all contestable. Marshall kept things narrow? Marshall gave the losing side respect? Which cases is Rosen looking at when he makes that assertion? And is narrow compromising Roberts's only path to greatness? Is it a path to greatness at all?


Simon said...

I think Rosen's operating under the mistaken impression that Roberts is a minimalist. :)

I contend that "Roberts is not interested in minimalism for its own sake, but rather, that he is interested in bringing stability, clarity and coherence to the law[,] ... sees stronger majorities as promoting [those] ends, and narrowly-drawn opinions as the predominant way of achieving those majorities." But in a cases such as Carhart or the school board cases from this week, where it becomes clear that the case will be decided 5-4 or 6-3, where unaminity is impossible, that is, "in cases where greater unaminity cannot be served by a narrower opinion, Roberts can still serve his principal goal by a clearer opinion." Ergo: "I think that certainly, in Carhart, Roberts would prefer an opinion that is clear and consistent, one that fosters the legitimacy of the judiciary and one that is supported by as many members of the court as is possible. Unfortunately, an opinion meeting the first three tests can only possibly command a maximum of five votes, and that being the case, I would expect to see one of two outcomes: either a staggeringly awful Kennedy opinion narrowing Stenberg, or a fairly good Roberts opinion overruling it."

dave said...
This comment has been removed by a blog administrator.
Simon said...

Dave, that has nothing whatsoever, even tangentially, to do with the subject at hand, and should be deleted.

Anonymous said...

I think greatness is always principled and always decisive. Narrow compromise is rarely those things.

Simon said...

But again, I think that misses the point of what Roberts is up to. I think Roberts is more formalist than he's given credit for. Consider: if you have a controversial opinion decided 5-4, that is going to leave the lingering question: what happens if a key member of the majority leaves? We are seeing precisely that drama playing out this very term vis-a-vis Grutter and Stenberg. Likewise, what happens when you have a complete train wreck like McConnell or League v. Perry? What is the law? What is the standard?

I think John Roberts has been a lawyer and has been a circuit Judge, and he has seen that uncertainty and a lack of clarity in the law has deleterious consequences. Hence, I think that the most sensible reading of his pronouncements on narrow opinions isn't that he wants narrow opinions, it's that he believes that narrower opinions will lead to fewer 5-4 decisions and jurisprudential train wrecks along the way. Could Rapanos, for example, have been more narrowly-written in a way that avoided a Kennedy concurrence, but without detracting from the clarity of the opinion? Perhaps, perhaps not.

So I don't think that Roberts is looking to artificially narrow the opinions, he's looking to have them written in a way that attracts a sixth vote, or dissuades from a concurrence. A perfect example of that is Ayotte, which I think we all expected to detonate the court room, but in the end, the issue was framed sufficiently narrowly that not only did Our Hero sign on, he kept his mouth shut. I think that might actually be the first abortion case during his twenty year tenure where he hasn't filed his own opinion.

Ultimately, if my conclusion (viz., that commentators have confused our Fearless Leader's means for his ends) is right, presented with a case that is going to come out 5-4 no matter what, I think he'll prefer a clear opinion over a confusing one. For that reason, I don't expect to see Kennedy getting disproportionate assignments - for precisely the reasons Dahlia identified yesterday (i.e., his doctrinal incoherence) I think Kennedy will get the assignment when he's wavering on a case, but whenever he is unlikely to do anything that damages Roberts goal of clarity, like a Rapanos concurrence, Roberts will see his goal served by a clear opinion announcing clear rules.

It's dangerous to evaluate a Justice based on their opinions and speeches over the course of one term, but that's my sense of Roberts.

Too Many Jims said...

If Roberts thinks he will be able to get many unanimous opinions on the Court's most divisive matters, he is either nostalgic, naive or incredibly gifted. If it is the last of these three, I suspect he will also be very busy writing the opinions.

Take the so called partial birth abortion case. Let's assume hecan get all of the Justices to agre to dispose of it in a very limited fashion. If he assigns the writing to Scalia could Scalia resisit a rhetorical flourish that this vindicates his position that: "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."? Conversely, could he assign it to Kennedy, Souter, or Stevens (and perhaps Ginsberg) without writing about how the current opinion comports with (for example) Planned Parenthood v. Casey? In each instance, how many "concurring in the judgment" opinions would such opinions elicit? I suppose I could imgine Breyer or Thomas writing a very limited opinion in effort to maintain the cohesion.

Richard Dolan said...

Rosen's piece is behind a subscriber wall, and so I haven't been able to read it in full. Judging from Ann's post and the comments here, Rosen apparently highlights a few administrative goals that Roberts -- frankly, anyone -- would favor: "bringing stability, clarity and coherence to the law." From that, he suggests a path that Roberts could supposedly follow to lead the Court through the minefield of constitutional theory, in cases where the Court's members are sharply divided on first principles.

It doesn't work. Before Roberts could write the "narrowly-drawn opinions" that Rosen thinks might do the trick, Roberts would first have to find the narrow constitutional principles governing these cases on which all or most members of the Court could agree. As the oral arguments in the Seattle and Louisville cases showed, the principles that unite the Court in these cases exist at the level of vague and airy platitudes -- "segregation is bad" kind of stuff -- but nothing that provides an operational way out of the fundamental disagreements. It's even worse in the abortion context, where there is no constitutional text addressing the issue that could, even in theory, provide the basis for agreement.

To see the problem more objectively, play out Rosen's scenario in the context of the constitutional disputes of the 1930s. In 1930, CJ Hughes and another Justice Roberts joined the Court. Try to imagine the "narrowly tailored opinions" that CJ Hughes could have come up with then, to bring "stability, clarity and coherence to the law" while also getting Justices Holmes and Brandeis to accept the basic premise of Lochner. Remember, Rosen's objective is to find a way for the Court to unite around "narrowly tailored opinions" that preserve its core holdings in these constitutionally controversial areas. If it was a non-starter then, why would anyone think it might work today?

Underlying Rosen's piece is the notion that one side of these constitutional arguments has much the better of it. I think he imagines that a holding action now -- that's what his talk about "narrowly tailored opinions" amounts to -- will give the Nation more time to absorb and accept the wisdom of the Court's constitutional escapades over the last 30 years of so that have tried to impose a solution on divisive social issues such as abortion, gay rights and racial preferences. If you don't share Rosen's starting point, you're not likely to be impressed with the free advice he is offering Roberts.