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WASHINGTON – 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 U.S. Court of Appeals for the Fourth Circuit, the chief justice picked the reviled Dred Scott decision of 1857, which upheld slavery in the territories. He 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 U.S. Supreme Court should not do. With other branches of government failing to deal with slavery, Chief Justice Roberts said, Chief Justice Roger Taney decided, “I’m going to solve it” and committed a “self-inflicted wound.” Instead, Chief Justice Roberts suggested, the Court should have decided the case on “much narrower grounds, which would have preserved the Court above the fray.” Chief Justice 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 Court—narrow decisions, mostly above the fray. He 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, 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, 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. 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 Justice Kennedy, a sometimes fickle conservative, allowed it to. Or are Chief Justice 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 Chief Justice 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. Chief Justice 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 Judge Sonia Sotomayor of the Second Circuit, and with the other branches of government in the hands of Democrats, Chief Justice Roberts might have felt now was not the time to provoke a fist-fight 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,” he said. But instead of describing it as incrementalism, Mr. Goldstein, 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), Mr. Goldstein thinks the Court’s conservatives foresee as many as eight more years of dominating the Court, allowing them to take the long view. Mr. Goldstein added that there is nothing wrong with this go-slow approach, which he said reflects Chief Justice Roberts’ “institutional commitment” to preserving the Court and “ensuring that it is regarded as an institution of integrity rather than a political football.” Professor Barry Friedman of the New York University School of Law is coming to a similar view. Mr. Friedman once feared Chief Justice Roberts would be “extremely conservative,” but after this term he views him as someone who “cares deeply about the institution of the Court” and “believes in incrementalism and in deferring to the democratic processes.” The test will come, Mr. Friedman said, “if he doesn’t win through those democratic processes.” But for now it appears Chief Justice Roberts is driven by “lawyerly legal process concerns” as well as possible consideration of how the Court would be viewed by the public if it moved to the right more quickly. Mr. Friedman’s forthcoming book “The Will of the People,” examines how public opinion has influenced the Court through history. Souter Valedictory The Court did not totally avoid making headlines this term. On the final day before its summer recess, the Court decided the much-anticipated Ricci v. DeStefano. With Justice Kennedy writing for a 5-4 majority, the Court said the city of New Haven, Conn., violated Title VII of the Civil Rights Act of 1964 when it denied promotions to white firefighters because a test on which they performed well yielded no qualified black applicants. But the justices did not reach a claim that the city’s action, or another section of Title VII that the city invoked in its defense, violated the equal protection clause of the Fourteenth Amendment. The previous week, the justices also sidestepped whether §5 of the Voting Rights Act was unconstitutional, in Northwest Austin Municipal Utility District Number One v. Holder. “If the Court wanted to strike down these statutes and stick to its guns, it could,” professor Jack Balkin of Yale Law School said on his Balkinization blog in a post titled “Why Has the Roberts Court Suddenly Gone Minimalist?” Mr. Balkin added, “The interesting question is why the Roberts Court stopped short.” Mr. Balkin’s theory is that the current political climate may have played a role. Issuing constitutional decisions uprooting the Voting Rights Act and affirmative action, he said, “would have had powerful symbolic significance, and undermined the Justices’ legitimacy…with the conservatives voting to use the power of judicial review to hold key civil rights provisions unconstitutional.” On June 18, the Court declined to find a constitutional right for a defendant to have access to DNA evidence in post-conviction proceedings. Chief Justice Roberts wrote for the majority that states were devising ways of handling the relatively new phenomenon of DNA evidence. “To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” the chief justice said. “We are reluctant to enlist the federal judiciary in creating a new constitutional code of rules for handling DNA.” Justice David Souter dissented in the case, District Attorney’s Office v. Osborne, for other reasons, but he expressed some sympathy for Chief Justice Roberts’ minimalist approach. “I certainly agree with the Court that the beginning of wisdom is to go slow,” Justice Souter wrote. Recognizing the newness of DNA technology, Justice Souter added, “We can change our inherited views only so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally.” O’Melveny & Myers Supreme Court expert Walter Dellinger wrote in Slate that Justice Souter’s words in the Osborne case may have represented his “partly disguised thoughts on gay marriage litigation.” But they might also have been Justice Souter’s barely noticed valedictory message to the Court in general and to Justice Roberts specifically. The slow approach had served Justice Souter well in his 19 years on the Supreme Court and would be wise for the Court to pursue in his absence. Evidence is growing that Chief Justice Roberts received Justice Souter’s message. @

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