Mr. Modesty
During his Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice judicial "modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade, a decision he described as "the settled law of the Land."
Did Roberts mean what he said? Jeffrey Rosen thinks so. In a provocative piece for the New Republic, Rosen argues that while it's too early to say for sure,
it seems increasingly clear that liberals dodged a bullet when President Bush nominated [Roberts] to be chief justice. Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms.
Setting aside Rosen's tiresome crusade against the non-existent "Constitution-in-Exile" movement, the point about Roberts and narrow opinions rings true. As Rosen learned from the chief justice himself, Roberts has, among other things, encouraged the Court to hear more business cases, since those tend not to divide the justices along stark ideological lines, contributing to "a culture and an ethos that says, 'It's good when we're all together.'"
Interestingly, Rosen's conclusions are very different from those of other liberal legal scholars, particularly New York University's Ronald Dworkin, who has argued that Roberts and his fellow conservatives have been fomenting a revolution that is "Jacobin in its disdain for tradition and precedent."
As evidence against such claims, Rosen points to the differences between the recent habeas dissents of Roberts and Justice Antonin Scalia. There is definitely something to that. As I've previously noted, Scalia's dissent is an ugly, even menacing document, while Roberts's makes the surprising point that, "the habeas process the Court mandates will most likely end up looking a lot like the [Detainee Treatment Act] system it replaces." That's a long way from Scalia's vicious assertion that Boumediene v. Bush "will almost certainly cause more Americans to be killed."
But of course we're not done with the current term yet. There's still the eagerly anticipated District of Columbia v. Heller, where the Supreme Court will decide on the constitutionality of Washington, DC's sweeping gun ban and most likely settle whether the Second Amendment protects an individual or a collective right to keep and bear arms. That decision may come as early as tomorrow morning. We'll see if Rosen still wants to call this term "something of a bipartisan lovefest" after that.
