A Conservative Activist Court

The New Republic: The Supreme Court's Right Wing Has Trampled On The Legislative Process

(The New Republic)  This column was written by Jeffrey Rosen.

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At the end of a bitterly divided Supreme Court term, liberals are by turns fighting mad and full of despair. Although Chief Justice John Roberts began the term by calling for greater consensus, a third of cases were decided by 5-4 votes, the highest percentage in more than ten years. The polarization inspired the four liberal justices to write some of their most passionate, incisive and memorable dissents. But how pessimistic should liberals really be about the future of the Court? Just after the term ended, I had an opportunity to interview Justice Stephen Breyer about the Court's role in American democracy at the Aspen Ideas Festival.

Breyer made no bones about his disappointment with the divisions on the Court. He began by discussing his 77-page dissenting opinion in the Seattle case forbidding public schools to use race in student assignments. The dissent is a tour de force. It combines a passionate defense of judicial restraint with blistering criticism of the majority for distorting precedents. "Of course, I got slightly exercised, and the way I show this is that I wrote 77-page opinions," he joked. "I think the color-blind view is very wrong, I think it's never been in the law, it's never been accepted by a majority of this Court, and, my goodness, if ever there was a decision that should be made locally, it's this one."

In several of the term's important cases, Roberts and Justice Samuel Alito declined to join Justices Antonin Scalia and Clarence Thomas in calling for the open overruling of previous precedents. Scalia even accused Roberts of "judicial obfuscation" and "faux judicial restraint" for his refusal to overturn the entire structure of campaign finance law rather than dismantling it incrementally. But Breyer, too, seemed unimpressed by conservative incrementalism: He suggested that it was better to overturn precedents cleanly than to pretend to preserve them while distorting them beyond recognition. "There were ten cases listed as important cases in the newspapers. I was in the majority twice — that was better than nothing," he said. "In three of the other cases, the majority of the Court said it was overruling prior precedents, and, in four other cases, the minority of the Court said you are overruling prior precedents. I thought there was quite a lot of precedent overruled, but the people on the other side, who are very good judges, thought they weren't overruling. I do think it's better to be open."

Breyer noted that the number of unanimous opinions has fallen from 32 percent in 2004, Justice Sandra Day O'Connor's last year on the Court, to 22 percent this year, and the 5-4 decisions rose from about 25 to 33 percent. Moreover, he noted, the number of 5-4 decisions where what he called "the usual suspects — me and John Stevens and Ruth Ginsburg and David Souter" were joined in a bloc has risen from 55 to 80 percent. He admitted that he had looked up another statistic: "In the 2004 term, I was in the majority eighty percent of the time, and I looked at this term: It's dropped to about thirty-five percent, so I was in dissent quite a lot."

I asked Breyer why Roberts had failed in his efforts to achieve consensus and whether he might ever come closer to achieving these goals. "Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle. But then Breyer said he was always hopeful that new justices will change. "This is a job that people who are appointed have for a long time. ... It takes a while before you have enough experience with the cases in front of you, before you have a view of what this document is, and a view of the institution." That's why, he said, "[I]t's very hard to predict how a person will decide things five or ten years in the future."

Breyer's cautious hope that the Court might become less polarized in the future, combined with disappointment at the polarization of the present, seems like the right attitude. It is a far more productive model for liberals than self-pity or shock about the unsurprising fact that, now that Alito has replaced O'Connor, the Court has moved right. For example, Emily Bazelon of Slate has demanded that liberals and moderates who supported Roberts as a potential unifier (including me) recant. This is premature. Bush won the 2004 election, and the opportunity to replace O'Connor with Alito ensured that he would change the direction of the Court. Those of us who supported Roberts never denied his conservatism. The question was: Who among the candidates President Bush was plausibly inclined to appoint as chief justice would be most likely to avoid the radicalism of Scalia and Thomas and try to unify the Court? In his first term, which began in October 2005, Roberts entirely vindicated these hopes. He embraced bipartisan consensus as his highest goal and presided over more unanimous opinions in a row than at any point in the Court's modern history.

This term, by contrast, Roberts notably failed in his efforts to achieve consensus, although he continued to distinguish himself from Scalia and Thomas with his commitment to incrementalism. The Court's shift to the right was driven by the fact that it took up controversial issues, such as race, abortion and campaign finance, which it had avoided while waiting for O'Connor's replacement. On all these issues, Alito and Anthony Kennedy are more conservative than O'Connor. And, most important of all, Kennedy, who is less pragmatic than O'Connor, refused to embrace Roberts's invitation to converge around narrow, unanimous opinions. Asked by Stuart Taylor Jr. and Evan Thomas of Newsweek what he thought of Roberts's effort after the term ended, Kennedy laughed. "I guess I haven't helped much," he said. "My initial reaction was going to be, 'Just let me write all the opinions.'" Roberts acknowledged from the beginning that he couldn't succeed without his colleagues' support, and he understood that, in the face of resistance to his vision from the median justice, even the most strenuous efforts to achieve consensus would be doomed.

It's too soon, as Breyer suggests, to tell whether Roberts will ultimately be more successful in achieving consensus. But, since he has embraced this as the standard by which his tenure should be judged, Roberts presumably understands that he can't preside over a decade of 5-4 decisions. Far from going down in history as a unifier in the tradition of John Marshall, he would be perceived as the leader of a partisan conservative Court, one that may be increasingly at odds with a more liberal president and Congress.

For the foreseeable future, however, the political composition of the Court won't likely change. And that has put some liberals in a despairing mood. On The New Republic's website, Cass R. Sunstein has lamented "the absence of anything like a heroic vision on the Court's left" to counteract "the existence of such a vision on the Court's right," embodied by Scalia and Thomas. Here I respectfully disagree. There is, in fact, a heroic vision on the Court's left, and it is squarely in the tradition of previous liberal visionaries like Oliver Wendell Holmes and Louis Brandeis. This vision, championed by The New Republic since its founding in the Progressive era, is rooted in strenuous bipartisan judicial restraint. It is today defended most eloquently and systematically by Breyer and Ginsburg, who have voted to strike down fewer state and federal laws combined than any of their colleagues.

In our conversation, Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "Ruth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence — confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them — striking down democratically adopted campaign finance laws and integration programs — is a sign of their weakness.

Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That's a strong basis." Liberals, in fact, could have reconciled their commitment to precedent and judicial restraint by upholding the partial-birth law while insisting it include a health exception. But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.

Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint. Conservatives have responded to this embarrassing turnabout by trying to rob the term of any neutral meaning. In a series of unintentionally hilarious editorials, The Wall Street Journal praised the Roberts Court for "restoring business confidence in the rule of law and setting limits on the tort bar and activist judges." Spare us the twistifications. For more than 50 years, conservatives have insisted that judges should defer to legislatures and let citizens resolve their disputes politically. But, at the very moment they consolidated their Supreme Court majority, they have abandoned this principle and embraced the activism they once deplored. I hope that Chief Justice Roberts, over time, will achieve his welcome goal of transcending the Court's divisions and helping conservatives rediscover the virtues of modesty and deference. But, for now, the party of judicial restraint has a convincing spokesman in Justice Breyer.

[terrapin78]

It will be an especially activist court if and when the question of Executive Privilege is before them.

The notion of or phrase "Executive Privilege" does not exist in the US Constitution. So by ruling in favor of EP, that would be legislating from the bench which is the Conservative Right's definition of Activist Judges.

[perception5]

Mr. Rosen thank you for the rich white liberal "point of view".

I along with the "majority" of other Americans "do not" agree with your "left" tilted view.

Propaganda does work for awhile it helped Germany at the beginning of the war but finally "good" over came "evil". So and it should be in America's corrupt liberal MSM wolfpack press.

No Justice .......... No Peace.

[hungry1968]

This is exactly why the judicial appointment system needs to be abolished. You get a delusional, right wing, nut job like Bush appointing his activist judges, then they rule in favor of what the church and the "right" want. It doesn't matter if 99% of the country is against it, as long as the Christians are happy, that's how the court will rule. That's why he tried to appoint Harriet Meiers (sp?) to the supreme court - so he could control her vote. Note that she hadn't practiced law in over 12 years, and hadn't even been in a court room in 19 YEARS - that was his first choice for the supreme court.

[idlepugilist]

So conservatives admit there's an obvious bias in the Supreme Court (..."liberals are finally getting a taste of their own medicine.")
Not sure exactly what medicine liberals were spooning out, but clearly Republicans are not just sanctimonious, but not surprisingly also whining in their new found ability to wield a blind and discriminatory club in the Supreme Court.

[alanrobisch]

I find it humorous the complaint that Judge roberts has not obtained consensus on controverial issues. If it is something he truly believes is right and the liberals are opposed the decisions will obviously not come out the way liberals want the decision to be. Liberal visionaries baloney. they created the laws they wanted without concern to the constitution. Now that liberals are getting a minor dose of their own medicine they are devastated. He who lives by the gun dies by the gun. Ie He who gets they want by a liberal making decisions consistent with their ideology not with the constitution deserve to have it turned upon them.

[alanrobisch]

the idea of a right to determine a law unconstitutional by the supreme court was not in the constitution either. Executive privilege has consistently upheld by both liberal and conservative courts. It is as the liberals love to say stare decisis. they love stare decisis because they don't want their sacred cows that were asserted without basis in the constitution to be overturned such as allowing the government to base laws on the color of one's skin that court ordered busing is or allowing less qualified students to be given admission to school because of their skin color.

[fredgrad2000]

"It doesn't matter if 99% of the country is against it, as long as the Christians are happy, that's how the court will rule. That's why he tried to appoint Harriet Meiers (sp?) to the supreme court - so he could control her vote. Note that she hadn't practiced law in over 12 years, and hadn't even been in a court room in 19 YEARS - that was his first choice for the supreme court."

WOW - Did you get that info right off of MoveOn.org or from the Daily Kos? Harriet Miers was not a good choice for justice; butyour 12 and 19 year quotes are just BS - please support that with a source...and 99% supporting what? ANY of the decisions this court went for. You're trying to tell me 99% of Americans have a problem with government money helping charitable organizations that happen to be affiliated with a church?! Only in ACLU/MoveOn.org land!! 99% think forced integration is smart or fair? Not quite...And the only reason liberals are screaming so loud about the campaign finance law is because they have egregiously exploited its loophole with the 527 groups (who far far outnumber and outspend all GOP 527s combined); to remove McCain-Feingold will negate the advantage liberals hold in 527 money. And believe me, I be surprised if 9%, much less 99%, support the ideals of MoveOn.org or the Center for American Progress; and coincidentally all those 9% control the Dem primary process, hence the catering to that group being seen in the Dem presidential race.

[alanrobisch]

Note byron white who was named to the supreme court was not a lawyer

[l8c6]

wawhite74, Not sure how you have felt your right to believe was being vilolated. Tough issues do exist however, such as when life begins i.e. if it's murder to have an abortion, some people are radically clear on this, angry and unopen to dialogue while it's understandable the argument of those who say it isn't clear, believing live begins at conception. The Romans used to let unwanted new borns die on a hillside, they thought that was o.k., today most would agree it's not and their are none openly willing to argue otherwise.

Still, the fact that many catholics and fundamentalist protestants have voted in favor of the right wing fascist neo cons who have held power in this country for so many years has left me bitter, angry, disillusioned and betrayed by the church. The clerics are hoes, big fat, greedy, sneaky, dishonest hoes. Religious clerics and the politicians who feed at the sectarian trough deserve the eternal torment they have built fear upon in order to gain power and social control.

[undermyboot]

For the last 50 years liberals have used this 'terror of the minority' to chip away at my religious freedoms and spit on my beliefs.
Posted by wawhite74 at 09:15 PM : Jul 14, 2007
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What a bunch of cr*p. No one keeps you from attending the church of your choice or praying as you want. You and the rest of your kind claim "religious opression" when you really want to force your religion on the rest of us through the force of government. Religious enforcement like not being able to have your denominational prayers forced down our throats in public schools simply is NOT oppression. Saying it is is just propaganda of the lying Christian TALIBAN who want to create a defacto theocracy in this country. Fortunatley the 2nd Amendment is still in force- and you can expect to find out just how much it is if you think you can create the "Christian States of America" here... If you get my drift MOFO.

[r9119111]

Hopefully a more conservative court will regain lost ground and give me back my right to believe in what I feel are unnegotiable beliefs.
Posted by wawhite74 at 09:15 PM : Jul 14, 2007

wawhite74: You are entitled to your belief and practice it any way you like. The problem begins when you try to force it on everyone else. I doubt if anyone ever tried to force other religions on you, except if they have the same self-righteous primacy that you are expressing.

[r9119111]

Hopefully a more conservative court will regain lost ground and give me back my right to believe in what I feel are unnegotiable beliefs.
Posted by wawhite74 at 09:15 PM : Jul 14, 2007

wawhite74: You are entitled to your belief and practice it any way you like. The problem begins when you try to force it on everyone else. I doubt if anyone ever tried to force other religions on you, except if they have the same self-righteous primacy that you are expressing.
Posted by r9119111 at 07:18 AM : Jul 15, 2007

I would also like to state that my belief of freedom to choose for myself is also unnegotiable.

[alanrobisch]

I am truly amazed at the bigotry and lack of tolerance for christian beliefs by the liberals. I kind of forgot where it says that if you are a christian you don't have the right to vote or hold office or try to get laws passed that are consistent with their beliefs. Oh I forgot we must be in stalinist russia where being a christian was illegal and holders of office had to be communists and atheists Maybe some of the posters want this for america

[noloyalisti]

The point is, we do not want even an inkling of religion mixed into government. Progressives don't have a problem with other people practicing their religion, just don't inflict it on others.

Do you not remember the brainless madman shrub railing against activist judges? Or is it OK as long as he agrees with their narrow beliefs?

[guysdigdirt]

The Roberts Court will be remembered for incompetence, religious delusions, and arrogance. Precedents like the Roe Decision were made to protect the right of women. John Roberts bases his opinions on misogyny, his own bizarre sense of morality, and ignorance. The next President should do the fair thing and nominate women to the Supreme Court.
Posted by Antillo99
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You seem to have all the answers and know all the right decisions that should be made, so why are you still making slurpees at 7-11?

[alanrobisch]

The point is, we do not want even an inkling of religion mixed into government. Progressives don't have a problem with other people practicing their religion, just don't inflict it on others.

Lets get this straight you think only atheists should have power and people who believe in god should be banned from public service. boy talk about idiocy. we all emphsize all have the right to express our opinions. Those who want to ban religion from govt are as bad as those who weeded out all protestants through the inquisition. we are I thought in a free society that allowed all beliefs to be expressed. I guess atheists are just as fanatical as they claim people who believe in God and are just as exclusionary if they can accomplish it.