Odds and Ends on Roberts

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There are plenty of other blogs raking John G. Roberts over the coals. (Or finding faces of the Messiah in the folds of his suit, if that’s what you’re after.) But I did want to point out an interesting comment made by Ramesh Ponnuru over at NRO, suggesting that it may be far easier in the future for conservatives to push through “stealth” judges without a long paper trail while still being assured of their conservative pedigree:

In-the-know legal conservatives are much more supportive of, and in several cases enthusiastic about, Roberts [than they were about David Souter]. It may be that the development of the Federalist Society–and the maturation of conservatism, as David Brooks suggests today–has made it possible for conservatives to pull off the stealth strategy today in a way that was not possible fifteen years ago. People familiar with him signal his acceptability to their acquaintances, and the message radiates outward.

So that will help them avoid future Souters. Although let me point out one potential flaw with Roberts for conservatives—and I don’t think I’m being disingenuous here. Commentators have noted that Roberts is very likely to judge like William Rehnquist judges: by having conservative instincts but not being very good at articulating a legal theory to support those instincts. Anyway, I just stumbled on an old Legal Affairs issue in which Kermit Roosevelt, a former Rehnquist clerk—and apparently not the CIA guy who overthrew the Mossadeq government in Iran in 1953—described the problems that Rehnquist’s under-theorizing created:

In 2003’s Nevada v. Hibbs, Rehnquist unexpectedly wrote a majority opinion upholding the Family and Medical Leave Act, which entitles employees to 12 weeks of unpaid leave to care for family members. The court ruled that the act was a valid exercise of Congress’s enforcement power under Section Five of the Fourteenth Amendment. The decision is hard to square with the court’s earlier Section Five cases and, in classic Rehnquist fashion, the nature of the distinction is left largely unstated. One possible interpretation is that Congress has greater leeway to address types of discrimination—such as gender-based discrimination—that courts have held are usually unconstitutional.

That Rehnquist might not have intended that principle, or, if he did, that he intended a narrower version, became apparent in Tennessee v. Lane. In that case last term, the court said that Title II of the Americans with Disabilities Act, which ensures access to public facilities, was also a permissible exercise of Congress’s power. Differential treatment of the disabled is usually constitutionally acceptable, in contrast to discrimination on the basis of gender or race. But the majority in Lane upheld Title II of the ADA as an effort by Congress to preserve the fundamental right of access to the courts. Rehnquist dissented, protesting vainly that Title II was “an illegitimate attempt to rewrite the constitutional provisions it purports to enforce.”

From Rehnquist’s perspective, Lane was a setback for both federalism and judicial supremacy. The diversion in Hibbs had proved costly. Of course, it may be that a more tightly written Hibbs opinion would have drawn protests from the other justices in the majority. It may even be, as some have speculated, that Rehnquist opposed the result in Hibbs and took the majority’s side only to limit the damage by writing a narrow opinion. Either way, in Lane, the chief justice lost.

Indeed, as Roosevelt says: “Under-theorizing may make it easier for an opinion’s author to bring together a majority in the immediate case, but it restrains an ambitious agenda. A seemingly solid coalition may fragment in future cases as its members realize they don’t share the same animating principles.” Simply having conservative instincts may allow a judge to sneak under the radar, but it could lead to some unexpected results down the road. Granted, this is, presumably, a pretty minor point, but worth thinking about.

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