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"Once the first baby comes along he’s bound to settle down and start treating me right."


Matt beat me to the most obvious response to Jeffrey Rosen’s modified limited hangout on Chief Justice Roberts. Although it’s indeed reasonable to have claimed that Roberts was better than some of the other alternatives, this is quite different than his contemporaneous arguments about Roberts, in which he asserted that the new Chief could shift the court to the left, and was a “gift to principled liberal and conservative defenders of judicial restraint” who liberals should confirm “with gratitude and relief.” I think it’s safe to say that such sentiments are inoperative. What I found particularly puzzling about this implied contradiction between cautious language and doctrinaire conservatism is that Roberts’s predecessor, William “throw Roe from the caboose” Rehnquist, also preferred (as Chief) to hollow precedents rather than to overturn them outright, and was also for the most part a party-line conservative. As a terrific New Republic cover story pointed out, the Alito/Roberts method is, if anything, even worse for liberals than the Scalia/Thomas one: it achieves the same results while attracting less public scrutiny. And if you have any doubts about the phoniness of the Potemkin modesty of Roberts joining in de farco overrulings, it’s worth noting that Alito and Roberts did not join the one “narrowing” opinion of any substantive significance: Kennedy’s refusal to go along with the “color-blind” majority in the school desegregation cases.

While Rosen now concedes that the Court has significantly shifted to the right, he still holds out hope for future consensus on the Court. But this continues to strike me as implausible. Explaining why the Court became more divisive this term, Rosen says that “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.” Well, I concede the point; Roberts is more likely to achieve consensus on issues that don’t divide liberal and conservative justices. But I’m not sure that the “new Chief Justice” variable is doing much work here. I’ll save this for a follow-up post, but as far as I can tell there’s no reason to believe that the Court will achieve significantly more consensus in future terms, and there never was any reason to believe that the Roberts Court would herald some new era of “judicial restraint.”

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