In 2006, at the end of his first term as Chief Justice, John Roberts told me that he was determined to place the bipartisan legitimacy of the Court above his own ideological agenda. But he recognized the difficulty of the task. “It’s sobering to think of the seventeen chief justices,” he said.
The Supreme Court’s decision to strike down most of Arizona’s immigration law is a cause for celebration—not least because it’s a model of how the Court can make decisions based on judicial philosophy rather than partisanship. The bipartisan majority opinion by Justice Anthony Kennedy, joined by Chief Justice John Roberts and the three liberal justices (Elena Kagan was recused) was modest and nuanced in tone and in substance—and consistent with all of the justices’ previous expressions of willingness to allow federal policies to trump state ones in cases where they conflict.
Last week, a New York Times/CBS poll found that only 44 percent of Americans approve of the Supreme Court’s job performance and 75 percent say the justices are sometimes influenced by their political views. But although the results of the poll were striking, commentators may have been too quick to suggest a direct link between the two findings.
AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term.
In the current issue of TNR, I suggested that the health care decision represents a “moment of truth” for John Roberts because, if the Supreme Court overturns the Affordable Care Act by a 5-4 vote, Roberts’s "stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.” This observation was intended as nothing more than a statement of the obvious. It has nonetheless provoked an outraged reaction from conservative commentators.
President Obama’s announcement that he supports same-sex marriage may have had an immediate impact on political discourse, but the same can’t be said of its implications for constitutional jurisprudence.
The Obama administration has hardly been a consistent defender of digital privacy. Recall, for example, its support for the reauthorization of the Patriot Act, or its position—unanimously rejected by the Supreme Court in U.S. v. Jones—that we should have no expectations of privacy in public.
For the past few months, the legal discussion in Washington has centered around the Supreme Court’s upcoming ruling on health care reform. Far less attention has been paid to a decision issued by the U.S. Court of Appeals for the D.C. Circuit on April 13—even though it may prove, in the long run, to be similarly significant. At first glance, the case, Hettinga v. United States, doesn’t seem to merit much attention, since it concerns a less-than-scintillating subject: the production and distribution of milk.
At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli.
The first thing to be said about the lawsuit filed last week by the Justice Department against Apple and five book publishers is that the defendants very well may be guilty. There does seem to have been collusion among them to fix the price of e-books. But even if the book publishers’ actions were illegal, that’s not to suggest what they did wasn’t understandable. Indeed, there’s a plausible case to be made that the actions of the publishers actually amounted to combating an abusive monopoly—namely, Amazon.