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March 09, 2006

The Roberts Court: An Early View

A spate of recent articles notes a disquieting lack of rancor on the Roberts Court. Is this the radical, out-of-the-mainstream jurisprudence we were warned about during the Roberts confirmation hearings?

Chief Justice John G. Roberts Jr., in less than six months as leader of the Supreme Court, has turned the famously quarrelsome justices, at least for now, into a surprisingly agreeable group that is becoming known for unanimous rulings.

Monday's decision rejecting a free-speech challenge to having military recruiters on college campuses marked the ninth consecutive ruling in which all of the justices agreed.

Oh do tell. In all fairness, though the Roberts Court has issued an unusual number of unanimous opinions (21 vs. 10 last year), the judicial honeymoon is not expected to last into the late session when more contentious cases traditionally hit the docket. Be that as it may, several of the court's early decisions have surprised observers:

The justices have joined to find compromise solutions in several cases. In others, they have found they could agree on a legal result, even if it did not fit a liberal or conservative mold.

And to a surprising degree, the justices — both liberal and conservative — have resisted the temptation to write dissents.

In a recent abortion case from New Hampshire, conservative Justices Antonin Scalia and Clarence Thomas signed on to an opinion that quoted Roe vs. Wade and said states could not restrict access to abortions when the health of the mother was at stake. The ruling revived a state law that requires minor girls to notify their parents before having an abortion.

Last week, in another abortion-related ruling, liberal Justice Stephen G. Breyer wrote the opinion saying that racketeering laws did not extend to abortion protests, even if they turned violent.

Two weeks ago, Roberts spoke for the court and gave a mild rebuke to the Bush administration for its refusal to allow a small Brazilian sect in New Mexico to serve hallucinogenic tea at religious services.

Within the court, this was known as the "high tea" case. But his opinion made an important statement about religious liberty. Federal authorities cannot infringe on religious practices unless they have a truly compelling reason for doing so, Roberts said.

So how has the new Chief Justice brought about comity and compromise on an oft-contentious Court? The half-vast editorial staff of VC, in its half-vast legal wisdom (gleaned from infrequent conversations with brilliant legal minds and a firm dedication to eschewing formal legal education of the type that caused the brightest minds of this nation to so tragically mistake the Court's intent in Solomon ) believes the answer can be found in the only legal philosophy Judge Roberts owned to during his confirmation hearings: judicial restraint.

The First Amendment Center finds support for this view in the Solomon case. Roberts deftly crafted a narrowly tailored ruling that carefully laid out potentially explosive First Amendment issues. His surgically precise summation made possible a remedy which aptly addressed the instant case without creating the kind of over-broad decision rightly feared by those on both sides of the political spectrum:

That kind of speech-celebrating sentiment, coupled with the formulation that the law at issue does not even regulate speech in the first place, may have been enough to draw in the likes of Justices David Souter and Stephen Breyer. During the arguments, Souter expressed concern about limitations on law schools’ speech rights, while Breyer on the other hand seemed to think that the law would in general promote more speech on campus — both by the military recruiters and those who object to the military.

In other parts of the ruling, Roberts listed other First Amendment doctrines that did not apply to the dispute at hand. The kinds of things law schools were required to do to comply with the law — such as alerting students about the time and place recruiters would be on campus — did not amount to coercing the universities to “speak the government’s message." Those speech-like activities are “plainly incidental” to the Solomon Amendment’s regulation of conduct, Roberts wrote.

As a result, he said the speech at issue is “a far cry” from, for example, laws compelling students to recite the Pledge of Allegiance, struck down in the landmark ruling West Virginia Board of Education v. Barnette.

As I explained earlier in this post, Roberts' restrained approach may also have done much to allay fears of the resurgence of that dread (if mythical) beast, conservative judicial activism:

Roberts also left untouched another line of cases involving government requirements that force one group to accommodate the unwanted message of another group — such as requiring a St. Patrick’s Day parade to include gay rights groups (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston) or requiring a newspaper to give aggrieved readers a right to reply (Miami Herald Publishing Co. v. Tornillo). In those cases, Roberts wrote, the unwanted message actually interfered with the speaker’s desired message.

This is reminiscent of his approach in Hedgepeth. A little judicial humility is not a bad thing, and one thing I have always liked about Roberts is his willingness to pass even on those matters with which he disagrees, if they lie within the purview of another branch of government. It is not up to SCOTUS to remedy all the ills of this vale of tears, and perhaps if they start realizing this startling fact, a few things will be returned to Congress and we can all get back to trying to govern ourselves instead of having nine Men in Black enshrine our future in imperishable stone forever.

Representative government.

What a concept.

Posted by Cassandra at March 9, 2006 06:36 PM

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