"It was the Supreme Court that conservatives had long yearned for and that liberals feared"

Marty Lederman

Yup. That lede of Linda Greenhouse's just about captures the October 2006 Term.

The three primary exceptions were (i) the Masschusetts v. EPA decision (especially for its discussion on standing); (ii) the four Texas death-penalty cases that Greenhouse discusses, demonstrating that "the state and federal courts" in Texas "remain to the right of the Supreme Court" -- to the right of a 5-4 majority, anyway; and (iii) Executive war powers, where yesterday's stunning grant of the petition on a motion to rehear in Boumediene suggests that at least in this one area, Justice Kennedy might continue to break with his conservative colleagues.

Of course, a large part of this decided trend can be explained by Justice Alito replacing Justice O'Connor. At the time of her resignation, I identified 31 5-4 decisions in her final decade on the Court that could very well be overturned by a Court with a more conservative Justice replacing her. (A recent iteration of that list can be found here. Steve Vladeck helpfully notes that I should add to it a 32d case -- Central Virginia Community College v. Katz, involving sovereign immunity and the Bankruptcy Clause -- decided after O'Connor announced her retirement (indeed, on her final day in office)).) So far, only two of those precedents have been (de facto) overruled -- but they're big ones: Carhart and the BCRA title II section of McConnell. And although Grutter was not overruled, its impact was severely compromised in the integration cases on Thursday. That's already three of the five major areas (abortion, affirmative action, campaign finance) I identified as the most significant doctrinal areas subject to dramatic shifts; the other two are the Establishment Clause and Congress's remedial powers under the Civil War Amendments. (The Court hasn't yet considered any cases in which O'Connor precedents such as Mitchell v. Helms and Tennessee v. Lane might be vulnerable.)

But the Chief Justice's contribution should not be underestimated. As Emily Bazelon explains in this terrific post, many self-styled liberals and moderates expressed some optimism a year or two ago that John Roberts would not be a predictable conservative vote -- as Jeff Rosen described it, that Roberts viewed himself as a consensus-builder seeking to find common ground among the Justices (as in the Solomon Amendment decision in his first Term), discouraging splintered opinions and endeavoring to avoid the impression that the Court's decisions are ideologically driven (and divided). For example, as Media Matters reminds us, the Washington Post endorsed Roberts's confirmation, even though its editorial board expected him to cast some votes they would not approve, because he had "a modest conception of the judicial function [and] a strong belief in the stability of precedent," and because "[w]hile [Roberts] almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics."

But if I'm not mistaken, the Chief Justice voted for the more conservative result (by most observers' lights) in 24 out of the 24 cases decided by a 5-4 vote. One might assume that in this respect, he is simply following in the footsteps of his predecessor. Yet occasionally Chief Justice Rehnquist would vote with the more liberal wing of the Court (particularly where he saw that he could not command a majority for the conservative position, as in Hibbs and Dickerson). There are not yet any such examples from the new Chief Justice. I don't think this should surprise anyone who had followed the Chief's career prior to joining the Court. But here's Cass Sunstein, as quoted by Bazelon: "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!"

[CLARIFICATION in response to comments: I am not suggesting that the Chief Justice is to "blame" for the lack of consenus any more than those Justices with whom he disagrees. My point was simply that he does have strongly held (conservative) views, and he's acting upon them in virtually every case, even when it means a very heatedly divided Court, and when (as in Leegin, WRtL, Carhart and elsewhere), it requires de jure or de facto overruling of past cases. Thus to the extent there were those who thought Roberts would, as in FAIR, often seek to craft resolutions that would bridge the gaps between the Justices, and that (in the Washington Post's words of endorsement), he "appears . . . unlikely to willfully use the law to advance his conservative politics," such hopes were misplaced.]
Posted 8:21 PM by Marty Lederman [link]