Font Size: 
Roberts Court Takes Narrow Road to Right
Decisions suggest chief justice may be slow-playing the Supreme Court's march to the right
The National Law Journal
July 07, 2009
Chief Justice John Roberts
Image: Diego M. Radzinschi/Legal Times
Just before the U.S. Supreme Court recessed for the summer last week, Chief Justice John Roberts Jr. was asked which decision, other than Marbury v. Madison and Brown v. Board of Education, has had "monumental consequence."
Without hesitation, speaking at the judicial conference of the 4th U.S. Circuit Court of Appeals, Roberts picked the reviled Dred Scott decision of 1857, which upheld slavery in the territories.
Roberts quickly made it clear he thought Scott v. Sandford was "terribly wrong," but he cited it because it offered a crucial lesson in what the Supreme Court should not do.
With other branches of government failing to deal with slavery, Roberts said, Chief Justice Roger Taney decided, "I'm going to solve it" and committed a "self-inflicted wound." Instead, Roberts suggested, the Court should have decided the case on "much narrower grounds, which would have preserved the Court above the fray."
Roberts, who has made a project of learning about his predecessors since becoming chief justice in 2005, seems to have applied the Taney lesson to his own leadership of the Supreme Court this term -- narrow decisions, mostly above the fray.
Roberts led a Court this term that often served up half-loaves for liberals and conservatives, businesses and consumers alike. The justices faced momentous shifts in Court doctrine on issues ranging from the Voting Rights Act to the exclusionary rule, campaign finance to the constitutionality of workplace affirmative action, and then stepped back from the precipice. When, in Safford Unified School District v. Redding (pdf), it decided that strip-searching a middle school girl violated the Fourth Amendment, it softened the blow by insulating school officials from lawsuits.
The term was a very mixed bag for business -- six wins, six losses for the Chamber of Commerce, whereas just two terms ago it won in 13 of 15 business cases. The biggest loss was Wyeth v. Levine (pdf), which allowed state lawsuits against drug manufacturers -- one of several recent rulings that denied the business community's wishes for a single federal regulatory rule rather than laws and litigation in each of the 50 states.
BIDING TIME
Was the Court's conservative majority fizzling just as it had during the Burger and Rehnquist courts, when liberal doctrines by and large survived assaults from the right? Was it yet another sign of the power of swing vote Justice Anthony Kennedy, who was in the majority in more 5-4 decisions (18) than any justice in more than 50 years? The Court could only move right if Kennedy, a sometimes fickle conservative, allowed it.
Or are Roberts and his conservative allies just pacing themselves, slow-walking their juggernaut in hopes of effecting change quietly, without triggering a backlash? A more benign, less stealthy version of that theory is also gaining currency: that Roberts, pegged by critics as an agenda conservative before joining the Court, was, in his fourth term as chief, embracing a more incremental approach for the good of the Court.
Roberts' remarks about Taney on June 27 would support that view. With the Court about to share the spotlight during this summer's confirmation hearings for Supreme Court nominee Sonia Sotomayor, and with the other branches of government in the hands of Democrats, Roberts might have felt now was not the time to provoke a fistfight with bold decisions from the right.
"This Court can afford to be quite patient," said Thomas Goldstein of Akin Gump Strauss Hauer & Feld at a Washington Legal Foundation briefing June 30. Moving rightward by building on narrow precedents one by one rather than all at once "won't look as dramatic," said Goldstein. But instead of describing it as incrementalism, the founder of SCOTUSblog offered the word "actuarialism" to describe his view of the Roberts approach. In other words, by looking at who might leave the Court first (liberals) and who might replace them (liberal President Barack Obama), Goldstein thinks the Court's conservatives foresee as many as eight more years of dominating the Court, allowing them to take the long view.
Goldstein added that there's nothing wrong with this go-slow approach, which he said reflects Roberts' "institutional commitment" to preserving the Court and "ensuring that it is regarded as an institution of integrity rather than a political football."
