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The Roberts Court has finished its second year, and it deserves high marks. A bright, idealistic chief justice seeking greater consensus has had to settle for less unanimity than he had hoped, but he has succeeded in restoring the Supreme Court to its properly more modest role in our system of separation of powers. The new chief has made a conscious effort to lower the court’s profile: taking fewer cases overall, being prudently hesitant to overrule precedent, and giving a greater emphasis to lawyers’ work � i.e., the resolution of statutory ambiguities rather than the fashioning of grand doctrinal pronouncements. In these ways, the court has kept its focus on the case before it. The big decision of the term’s last day is a good example of the latter. On June 28, the court issued a joint opinion in two cases where public schools in Seattle and Louisville had used race-based admissions. Stop it, said the 5-4 opinion. To keep faith with Brown v. Board of Education (1954), admission has to be “on a nondiscriminatory basis,” that is, “on a nonracial basis” (quoting Brown itself). “What do the racial classifications do in these cases,” asked Chief Justice John Roberts about crude racial tie-breakers, “if not determine admission to a public school on a racial basis?” Wrote Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The chief justice wrote for only a plurality, with Justice Anthony Kennedy writing separately. But too much should not be made of this. Yes, Kennedy retains enormous importance, but his work product was largely in substantive accord with that of Roberts and Justice Samuel Alito. More important, unlike prior terms, when Kennedy would write a separate concurrence that sometimes had more in common with the dissent, this year Kennedy more frequently joined another’s concurring opinion or, when he did write separately, helpfully indicated both his common ground with the majority and those few particulars where he saw matters differently. In the race cases, for example, Kennedy agreed with the full-throated embrace of equality under law articulated by the plurality, but he did not want to entirely foreclose race-conscious measures to address the problem of de facto resegregation in schools. He suggested that it might be permissible for school boards to pursue racial mixing through strategically selecting new school sites, drawing attendance zones with a general recognition of the racial makeup of the neighborhoods, and tracking enrollment and performance by race. The plurality properly refused to express any opinion of these possibilities, even in dicta. The Roberts Court decides the case in front of it, not the next half-dozen that may be anticipated. Also in its final week, the court held 6-3 that a high school principal was not liable for “free speech” damages when she suspended a student for raising a banner that promoted illegal drug use. Most citizens would think this plain common-sense, but reflecting some pre-Roberts edginess, Justice John Paul Stevens in dissent proclaimed it “serious violence to the First Amendment.” The chief justice refused to get drawn into such overstatement, writing mildly that the “question hardly justifies sounding the First Amendment bugle.” This decision nicely illustrates the new chief’s intelligence and personal skills as well as his focused effort to dampen judicial name-calling. Then-Justice Sandra Day O’Connor once noted that “strong, almost abusive language . . . does not help the collegial process.” Although she now properly keeps any assessments of her successors to herself, surely O’Connor would approve of Roberts and Alito’s no-nonsense, no-recrimination manner of exposition. Despite some ideological carping from those who lost cases that depended upon the extension of past decisions, Roberts and Alito have also shown themselves to be strongly respectful of precedent. Advocates this term urged overturning previous abortion decisions, a Warren Court ruling allowing taxpayers to sue in religion cases, and campaign spending limits. The new justices left those precedents in place, often resisting both their unwarranted extension to new facts and the urging of Justices Antonin Scalia and Clarence Thomas to overrule them. This cannot fairly be dubbed faux deference. Tinker v. Des Moines Independent School District (1969) still meaningfully invites robust discussion of political and social views in school, as Alito and Kennedy strongly reaffirmed in Morse v. Frederick, even though Tinker did not protect advocacy of illegal drug use. Likewise, the allowance in Grutter v. Bollinger (2003) for race as one factor in pursuit of higher-education diversity was reaffirmed, notwithstanding the court’s rebuff of outright racial balancing. A willingness to resolve cases narrowly and with restraint is healthy for the court as an institution. It allowed the justices to decide sensitive cases � from upholding the “partial-birth” abortion limitation to pushing the federal government to consider global warming � without unhelpful sniping among themselves. And there is an additional dividend: A nonpolitically charged court has to date largely kept the issue of judicial selection out of the sparring among presidential aspirants. Nonetheless, the fact that the early years of the Roberts Court have moved the judiciary away from the hazards of political judgment disguised as law should not engender complacency as we move toward 2008. There are differences among the potential judge pickers. Who among them will help the chief justice continue to de-politicize judicial behavior? Remember that the reasoned, targeted case resolutions of the past term are the civic yield of personnel planting by President Ronald Reagan, who was determined to save the judiciary from self-destruction by overreach. Had Roberts and Alito not received their start in public service in the Reagan administration, President George W. Bush would not have been able to give life to the Madisonian insight that “the courts exist to exercise not the will of men, but the judgment of law.” The contentious confirmation battles of the last 20 years or so have obscured the meaning of adhering to the rule of law. That phrase is more than a bumper sticker. Most directly, the corrosive notion that law lacks substance, that it is little more than disguised power, and that judges just make it up must be decisively rejected. The law has an independent reality anchored in text, tradition, and the truth of the human person. James Madison told us that the Constitution was intended to reflect human nature. Everyday discussion reveals as much. When clients seek counsel on the law, they are paying by the hour for more than idle speculation or subjective opinion, and they expect law to bear some reasonable semblance to life as they know it. Citizens rightly ask, Does the law really sanction same-sex marriage or racial preferences? The inquiry is not, What do the judges favor today? There are many well-qualified men and women who can put aside personal bias on the bench. Many such persons, appointed by both parties, now administer justice in this nation’s courts. They took the judicial oath to “impartially discharge and perform all the duties incumbent upon me, according to the best of my abilities and understanding agreeably to the Constitution and laws of the United States.” They do not believe that “agreeably to the Constitution and laws” means “agreeably to my personal view of what the Constitution or laws should be.” The Roberts Court has begun to reaffirm the reasoned elaboration of principle in place of a high court whose decisions too long appeared to be the simple products of majority votes. We think more than a few Americans will want this process to continue. If so, they will need to examine the presidential candidates with care to determine whether they will select federal judges based on law, not on politics. Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University. Douglas W. Kmiec is a professor of constitutional law at Pepperdine University and former head of the Office of Legal Counsel for Presidents Ronald Reagan and George H.W. Bush. They serve as co-chairs of the Romney for President Advisory Committee on the Constitution and the Courts. This piece originally appeared in Legal Times, a Recorder affiliate.

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