John Roberts on judicial doctrine

Sandy Levinson

In a sharply worded dissent yesterday in a case overturning the imposition of the death penalty with regard to specific Texas defendants, Chief Justice Roberts wrote, “We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to ‘clearly established’ federal law.” He went on to describe the relevant precedents as “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”

He was, of course, referring only to the tangled capital punishment cases of the Court, which often turn on the more-or-less idiosyncratic views of the fabled "median justice," a role previously occupied by Sandra Day O'Connor and now filled by Anthony Kennedy (who was in the majority in all three of the cases striking down impositions of the death penalty). But one might well apply Chief Justice Roberts acerbic comments to vast areas of contemporary constitutional law, where one can confidently say that a substantial majority of the Court believes that current doctrines make little or no sense, but, of course, they split shaprly on what "sensible" doctrine would be. So we have, in the two affirmative action cases from the University of Michigan, Gratz and Grutter, 7 justices who agree that the policies of the undergraduate and law school admissions should rise or fall together, while Justices O'Connor and Breyer were able to discern constitutionally relevant distinctions that, therefore, controlled the outcomes in the two cases. Another notorious example is the set of Ten Commandements cases from Kentucky and Texas, where only Justice Breyer was able to see a difference in the two cases. And, of course, the abortion decision last week might well fit this model, inasmuch as it's difficult to believe that anyone besides Justice Kennedy could see a genuine distinction between that decision and the one several years ago that struck down a functionally identical law from Nebraska. "Dog's breakfast" seems quite accurate as a description of much, perhaps most, of the Supreme Court's recent handiwork with regard to interpreting the Constitution.

My own view, as a "teacher" of constitutional law to impressionable law students, is that it's basically a waste of time to inflict most of these cases on the young except insofar as they should become aware of the potential for intellectual incoherence generated in any multi-member decisionmaking body that puts a premium on issuing a collective opinion (instead of the old English practice, for example, of "seriatim" opinions delivered by each member of the court). And this also raises extremely interesting questions of "judicial ethics," inasmuch as justices regularly sign opinions with which they could not possibly agree in toto simply to create an "Opinion of the Court" that ostensibly declares the law. The most important example is the willingness of Chief Justice Rehnquist and Justices Sclaia and Thomas to sign the per curiam opinion in Bush v. Gore. As Richard Posner, among others, has noted, it is inconceivable that they agreed with a word of the "equal protection" analysis; they would have rested the decision on their reading of Article II relating to the appointment of electors. The embarrasment is that that reading was rejected by six of the justices, and if they had refused to sign the court's opinion, then the equal protection analysis would have been rejected by five of the justices. So the result would have been Bush wins (by adding the three votes for the Article II analysis to the two votes of Kennedy and O'Connor based on Equal Protection) even though the specific analyses justifying that win would have been rejected by a majority of the Court. So sacrificing intellectual integrity was a small price to pay to create the illusion that "the Court" had genuinely united behind anything other than an outcome (Bush wins).

But the point is that justices of all stripes regularly sacrifice their intellectual integrity in order to reach the all-important "rule of 5," i.e., getting (at least) four of their colleagues to unite behind a single opinion that can be presented to lower courts (and law professors, law students, lawyers, and editorial writers) as "the law" instead of merely personal opinions of the justices. Justice Brennan, for example, signed his share of opinions that he could not possibly have believed because they were effective way-stations on the way to what he hoped, at a later time, would become the final view of the Court.

Along this line, I commend a review by Jeremy Waldron in the current New York Review of books on two recent books, by Jeffrey Rosen and Jan Crawford Greenburg, on the Supreme Court. Waldron is quite critical of both because they present as their models of judicial behavior politically-skillful pragmatists who will not let rigid adherence to legal principles stand in the way of making deals with their colleagues necessary to achieve majority opinions. Thus Rosen invidiously contrasts the rigid Scalia with the more malleable Rehnquist, and both seem to be infatuated with John Roberts as a politically savvy Chief who will ultimately not let his views as to what the Constitution, best interpreted, means stand in the way of achieving some kind of judicial "consensus." Waldon, perhaps the best known systematic critic of the very idea of judicial review, asks why we should put such power in the hands of individuals who are acting more like "politicians" than as stern guardians of legal principles. Interestingly enough, in Greenburg's book, it is Clarence Thomas who comes across as the justice with the greatest degree of Dworkinian "integrity" inasmuch as he rarely seems willing to bend his views on the what the Constitution means simply to make nice with his colleagues. (This makes his vote in Bush v. Gore all the more interesting, therefore, since it cannot possibly be defended under any "integrity" model of judging.)

A final point: The acerbity of Roberts's dissent suggests that he may be giving up on his professed desire to overcome the fragmentation of the current Court. So maybe he is on his way to becoming more like Thomas or Scalia. The "Roberts Court" (which is really, right now, the Stevens-Kennedy Court) is clearly a work in progress, not least because of the consequences of the 2008 presidential and Senate elections for who will succeed the now-87-year-old John Paul Stevens and, possibly, the already septagenerians Scalia, Ginsburg, and Kennedy.
Posted 10:49 AM by Sandy Levinson [link]