The New Republic

In 2006, at the end of his first term on the Supreme Court, John
Roberts told me and other journalists that his goal as chief justice
would be to promote unanimity and collegiality by encouraging his
fellow justices to converge around narrow decisions with few
dissents. During his first term, Roberts succeeded impressively:
More than half of the Court's opinions were unanimous, and only 13
percent were decided by a 5-4 vote.The polarized Supreme Court term that ended last June, however,
looked very different. Only 38 percent of the Court's decisions
were unanimous, and 33 percent were decided 5-4, the highest
percentage in recent years. Moreover, in cases striking down
affirmative action and campaign finance reform, Roberts and his
dissenting colleagues attacked each other in unusually personal
terms. Noting this, some liberal bloggers and journalists argued
that Roberts's call for unanimity had been a charade. Emily Bazelon
of Slate wrote that Roberts didn't actually care about "unity and
restraint" and that he would become only more extreme over time.

Bazelon's judgment was premature. Although this Supreme Court term
isn't over, it's already shaping up to be something of a bipartisan
lovefest. "Where have all the 5-4 decisions gone?" asks Linda
Greenhouse of The New York Times. As of this writing, nearly 40
percent of this term's decisions were unanimous, and only 14
percent were decided by 5-4 splits. Even more tellingly, some of
the term's more controversial decisions--including those involving
lethal injections, voter identification laws, federal efforts to
curb child pornography, and Iraqi detentions--were unanimous or
decided by lopsided, bipartisan majorities. True, there have been a
handful of high-profile 5-4 decisions along familiar ideological
lines, such as the case extending the writ of habeas corpus to
inmates at Guantanamo Bay--and there may well be more in the final
weeks of the term--but they have been the exception, not the rule.

It's still too early to judge Roberts's tenure, but it seems
increasingly clear that liberals dodged a bullet when President
Bush nominated him to be chief justice. Instead of siding with
conservative extremists like Clarence Thomas, who are eager to
press the limits of the so-called Constitution in Exile,
resurrecting limits on federal power whenever possible, Roberts
prefers narrow opinions that can attract support from the center.
Liberals ought to applaud this instinct because, even if Barack
Obama gets to appoint the next justice or two, it's the only thing
standing between them and a Court eager to roll back progressive
reforms.

Why was Roberts successful in uniting the Court this year? Part of
the reason, as Orin Kerr of George Washington University recently
observed, is that he has done exactly what he said he would do in
2006: namely, convince moderate liberals and conservatives that
unanimity is in their interest. In particular, Roberts has been
more willing than his predecessor to assign plurality (rather than
majority) opinions. In these cases, Roberts begins with the three
center- right conservatives (himself, Anthony Kennedy, and Samuel
Alito) and tries to attract liberal justices to a narrowly reasoned
decision, while letting the hard-line conservatives (Thomas and
Antonin Scalia) write separate, more extreme concurrences. In cases
with no majority opinion, the narrowest opinion for the winning
side has to be followed as if it were the majority opinion. Roberts
has followed this strategy--finding a "sweet spot," as Kerr puts it,
by "aiming toward the middle"--in the recent 7-2 and 6-3 cases
upholding lethal injections and voter ID requirements. In both
cases, the Court issued a moderately conservative controlling
opinion joined by one or two liberal justices, followed by more
extreme concurrences by Scalia and Thomas.

Roberts has also promoted unanimity by encouraging the Court to hear
more business cases, in which the justices tend not to divide along
ideological lines. Roberts told me that unanimity in less
high-profile cases could promote "a culture and an ethos that says,
'It's good when we're all together,'" and that's exactly what the
business cases--which represent about 45 percent of the court's
docket this year--have achieved.

Out of 14 cases in which the U.S. Chamber of Commerce filed briefs
this year, 86 percent have already been decided by margins of 7-2
or better and over one- third have been unanimous. During a tnr
town-hall interview in March, Justice Stephen Breyer explained that
cases involving the interpretation of federal statutes were often
less divisive than constitutional cases because they turn on more
technical questions about which the justices don't have strong pre-
existing views. He also said that when a decision was nearly
unanimous, he was inclined to think: "Maybe that was the right
answer!"

In cases where the justices do have strong constitutional views,
such as the decision last week involving habeas corpus at
Guantanamo, the familiar 5-4 ideological divisions persist. But,
even in the Guantanamo case, Roberts dissented from the majority
opinion in far more measured terms than he had used to criticize
Breyer's dissent in the affirmative action case last year. Avoiding
Scalia's hysterical claim that this decision "will almost certainly
cause more Americans to be killed"--an assertion unsupported by
anything in the government's brief--Roberts respectfully argued
that the liberal justices themselves had previously suggested that
Congress, rather than the courts, should decide detention policy.
Similarly, Justice John Paul Stevens's willingness to side with the
moderate conservatives in the voter ID, lethal injection, and child
pornography cases suggests that he, too, has concluded that
constructive engagement is better than 5-4 polarization when a
narrowly reasoned opinion may leave the door open for liberal
victories down the road.

In their eagerness to dismiss Roberts as a hypocrite, liberal
critics have suggested that it doesn't matter whether conservative
opinions are based on narrow or broad reasoning; all that matters
is the bottom line. But this judgment, too, is shortsighted. Even
if Obama wins the White House and has the opportunity to replace
one or two retiring liberal justices, the Court's ideological
makeup is likely to stay the same for the foreseeable future: four
liberals and four conservatives, with Kennedy in the middle. If
Roberts succeeds in promoting narrow, bipartisan opinions, the
Court is unlikely to resurrect the Constitution in Exile and
declare war on a progressive Congress for the first time since the
New Deal era. By contrast, if Roberts fails and the Court gets in
the habit of handing down sweeping conservative opinions by
polarized 5-4 majorities, many of the health care and environmental
reforms that progressives hope for from a Democratic president and
Congress might be struck down by the Court.

As Larry Kramer, the dean of Stanford Law School, puts it, "Once
solidly in power, Democrats are more likely to push the envelope in
areas like the environment and health," rather than civil
liberties, and a conservative court could push back by holding that
Congress lacks the power to regulate matters previously left to the
private sector. For example, according to Damon Silvers, associate
general counsel for the AFL-CIO: "Legislation requiring employers
to purchase health insurance for their employees could be
challenged by arguments asserting the Constitution includes an
unwritten guarantee of freedom of contract that would allow private
parties to enter into employment contracts without health
insurance." Going forward, Silvers told me, "[t]ax policies and
regulations seeking to limit the use of carbon-based fuels could be
challenged as a taking of someone's mineral rights." Although
Thomas might be sympathetic to these arguments, he and Scalia would
remain on the Court's conservative fringe in an Obama
administration--but only if Roberts continues to promote narrow
opinions that appeal to the center.

The presidential election, of course, will determine the future of
the Roberts Court. If McCain wins, there will be a lopsided
conservative majority, and Roberts will no longer need to win over
the one or two liberal justices on the margins. But, if Obama wins,
Roberts's success in promoting his vision of unity and minimalism
will determine whether the Court blocks a Democratic Congress and
White House or whether it lets them pass the laws that the American
people expect.

share this article on facebook or twitter print this article