Chief Justice John Roberts Jr.
(3 of 4)
The opinions in the case featured page after page of rich and exhaustive legal reasoning, befitting the intellectually dazzling court. Justice Clarence Thomas reiterated his often expressed opposition to affirmative action of all kinds, this time in 36 pages. Justice Stevens delivered a relatively terse ad hominem attack on the majority and offered his nonbinding belief that "no Member of the Court that I joined in 1975 would have agreed with today's decision." (The other eight are dead, so this couldn't be confirmed.) Kennedy offered an airy critique of both sides of the argument.
Meanwhile, Roberts and Breyer churned out the lion's share of the verbiage, writing for and against the court's ruling. Each strove to wrap the case in the lustrous legacy of Brown. "Before Brown," Roberts intoned, "schoolchildren were told where they could and could not go to school based on the color of their skin," and now these schools are doing the same. Not true, countered Breyer. Indeed, "to invalidate" those policies "is to threaten the promise of Brown," he warned.
The inescapable conclusion, for anyone with the fortitude to read the entire tome, was that each faction of the court wanted the public to believe that the other side was soft on racism and imperiling one of the monuments of American justice. All based on a case that broke little new ground and affected few, if any, people.
A sense of proportion is among the defining qualities of a judge. Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills. Roberts' first written dissent, published six months after he joined the court, seemed to accuse the majority of making the world safe for wife beaters. The case at hand dealt with a fillip in the vast edifice of Fourth Amendment law governing police searches. To wit: What if a husband and wife are together at their home and the wife invites the police in to search for her husband's drug paraphernalia but the husband says no? Is the consent of just one spouse sufficient? Previous courts had handled the slightly different instance in which one spouse is sleeping, as well as the slightly different instance in which the wife gets the drug paraphernalia and hands it to the police. This case simply resolved the small number of instances in which both Bickersons are at the door together.
That this is an intriguing philosophical puzzle was evident from the opinions--six of them--totaling 48 pages. In places, they read like the midnight bull session of the world's smartest law students. But when Roberts warned that the decision would effectively seal battered women in their homes with the police locked outside, he sent Breyer and Justice David Souter to their keyboards to write yet more pages establishing the long settled fact that police are allowed to enter a home to stop domestic violence, with or without consent.
Even soft-spoken Ginsburg belted out an aria last term. The decision to uphold a federal ban on so-called partial-birth abortions provoked a speculative outburst from the legendary women's rights advocate. The ban, she declared from the bench, "and the court's defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court--and with increasing comprehension of its centrality to women's lives." Someday we'll know whether the right to abortion will be chipped to nothing by the Roberts Court--or whether, as some legal theorists predict, the issue fades away with the arrival of further advances in contraception. As for the actual decision that provoked Ginsburg, it's a stretch to think that it will be central to the lives of women.
Heartfelt disputes have been a part of the court forever, but that doesn't mean the Justices have always treated one another this way. When Oliver Wendell Holmes Jr. famously dissented from the Supreme Court's 1905 ruling rendering governments nearly powerless to regulate working conditions--for decades one of the most consequential cases in history--he needed just three paragraphs to say his piece. He was piercing but entirely civil and expressed sadness that he felt compelled to write at all: "I regret sincerely that I am unable to agree with the judgment in this case."
Benjamin Wittes, a fellow at the Brookings Institution, is among the court watchers distressed by the bellicose tone of some recent decisions. He points to the once rancorous Washington Circuit Court of Appeals as an example of an ideologically divided panel that has managed to find its way back to civility. "It's not clear yet if John Roberts understands that that achievement requires the judges to give something up," Wittes says. "Namely, excess rhetoric." Even some Justices express concern on occasion. The newest of the nine, Alito, has confided that he finds the rhetoric dismaying, and he recently noted during a question-and-answer session at Pepperdine School of Law that it can be almost impossible to slip in a question among all the speechifying by his colleagues during oral argument.
Heading into the Second Inning
The Chief Justice has been encouraging people not to make too much of the court's divisions. A lifelong baseball fan, he turns again to a sports analogy. A single term in the life of the court, he likes to say, is like a single at bat in a baseball game.
But with voting rights, the death penalty, Guantánamo detainees and, in all likelihood, gun control on the docket this term, there will be plenty of fuel to heat up the rhetoric again. The question is whether Roberts and his colleagues will put away their matches.
No one knows better than Roberts how difficult this will be. Many of these Justices seem to seek the spotlight--the hotter, the better. Thomas' headline-making memoir, thick with grievances, drowns out the substantive work of the court. Other Justices prefer to give speeches, barely disguised as questions, from the bench or to jet around the globe to conferences and panel discussions.
As a clerk for Rehnquist in 1980, Roberts was assigned to conduct research for an article on the power of a Chief Justice to set the court's tone. He found an essay in which Frankfurter scoffed at the very notion. Every Justice "is his own sovereign," Frankfurter wrote; you can't expect Justices to get along just because a new chief smiles at them. Rehnquist's article concurred.
A quarter-century later, John Roberts still wants to believe that something more is possible. A Chief Justice ought to aspire to persuade his colleagues "to be open to the considered views of the others," as he explained in a 2006 speech at Georgetown University. Roberts added, "There will, of course, be divisions on the court, and those cannot and should not be artificially suppressed." Still, "working toward broader agreement should be one of [the] shared aims" of all Justices.