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A Conservative Activist Court

This column was written by Jeffrey Rosen.

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.
By Jeffrey Rosen
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