Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
RECENT POSTS
MONTHLY ARCHIVES
« Previous | Main | Next »
The Roberts Court
May 15, 2007 11:56 AM
After the partial-birth abortion decision caught us all off guard (who expected it in April?), everyone’s ready for the school integration cases, which may give us another chance to say “landmark.” The justices are weighing whether to strike down voluntary plans in Seattle and Louisville, where officials contend they must consider a student’s race in order to achieve a certain racial balance in their schools.
It seems likely that the Court will strike down the programs as unconstitutional—probably by a 5-4 vote, with Chief Justice John Roberts writing the opinion. The four more liberal justices will dissent, and much will be made of the fact that Anthony Kennedy, again, is the swing vote in the majority.
It’s been well documented by now. Kennedy has been in the majority in every single 5-4 case this term. Last month’s partial birth abortion decision, which Kennedy wrote, was widely seen as proof of his role in shaping the Court’s direction. With a new lineup of justices and the Court in flux, it’s Kennedy who’s now seen as the key player, the go-to guy who replaced Sandra Day O’Connor as the critical swing vote.
Some are going so far as to call it the “Kennedy Court,” just as people used to refer to the old Court, led by Chief Justice William Rehnquist, as the “O’Connor Court.”
Not to sound like AMK himself here, but I’ve been struggling with that. That label just doesn’t fit—nor does it capture what’s going on inside the Court. I know Kennedy is the Man to Watch. But I don’t think we’re seeing the emergence of the Kennedy Court.
This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it’s going to take. When you talk about long-range influence over the law, it’s the ideas that define the Court. It’s a Court in struggle—not for the vote of one justice, but for an intellectual mooring.
It’s the Roberts Court v. the Stevens Court.
And as this term is beginning to make clear, in that battle, Roberts’ vision is going to win out. It may not be this term, though the Chief certainly will prevail in those big-issue cases more than JPS will. It may not be in every case, or with much in the way of consensus. But even if Stevens stays another decade (to 97!), I’d bet that Roberts is going to carry the day with this group of justices.
Right now, he’s playing the hand he’s been dealt. He is presiding over a Court with four judicial conservatives, not five. But Kennedy doesn’t have to be the wild card--far from it.
For one thing, Kennedy is not O’Connor. Kennedy doesn’t instinctively seek the middle or try to provide balance. He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.
Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win. (We saw it yesterday in a 5-4 habeas case that had Kennedy joining Justice Thomas and the conservatives, and Stevens writing a pointed dissent.)
Look at Gonzales v. Carhart. That decision makes clear Kennedy’s vote is not going to be up in the air nearly as often as O’Connor’s. Sure, Kennedy may be with liberals on some cases, as in the recent decision (by Stevens) rejecting the EPA’s claim that it lacked authority to regulate greenhouse gases from new cars and trucks.
But the abortion decision shows everyone that Kennedy will side with conservatives more often than with liberals—and certainly a lot more than O’Connor did in those big cases people care so much about. We’ll see it again in the race cases. On issues of race, Kennedy is never a swing vote. That’s as area—along with free speech--in which he’s been entirely consistent over the years. He opposes racial considerations and racial preferences much more so than O’Connor ever did.
Indeed, the race cases will be less about Kennedy’s new power to dictate the outcome of a decision than about how conservatives—led by Roberts and aided by the new vote of Sam Alito—are steering the Court in a different direction.
The most interesting aspect of the race case is how aggressively Roberts, assuming he assigned himself the opinion, will actually write it. It could test his views on minimalism and modesty, both of which are key components of his overall vision for the Court.
With the five conservative justices emphatically against race-based decision making, it’s possible for Roberts to write broadly and take aim at Grutter v. Bollinger, the 2003 affirmative action case, in which the Court—with O’Connor providing the key fifth vote with liberals--upheld an affirmative action program at the University of Michigan Law School.
But Roberts could hold back—even though I suspect he has his votes to overturn Grutter. He is not going to compromise his principles for the so-called “good” of the Court, but he has talked a lot about writing decisions more narrowly. Some have assumed he’s talking about reining in Justices Scalia and Thomas. I don’t think he is. Roberts sees the law much like Scalia, and it’s hard to see why he’d object to a Court with that kind of approach.
No, it seems to me that talk is about Kennedy.
Roberts realizes he’s presiding over a Court with just four judicial conservatives. But he surely must want to preside over a Court that functions as a Court—not one with a justice whose vote always is up for grabs and whose direction is set by that vote. That’s the position William Rehnquist found himself in with O’Connor. Lawyers wrote briefs and argued cases targeted at getting her vote. Roberts would say that’s bad for the law and bad for the Court—and I’d bet the other justices, including Kennedy, would agree.
Roberts is trying to shift the debate inside the Court. His position is that the Court--instead battling for one justice’s vote and swinging for the fences in the big cases--should take a more restrained and narrow approach.
If he could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.
That would be the Roberts Court.
May 15, 2007 | Permalink | User Comments (11)
You can follow this conversation by subscribing to the comment feed for this post.
With tonight's debate in mind, I'm wondering if Giuliani considers Kennedy a "strict constructionist" -- one of those "strict constructionists" he mentioned in the last debate that would uphold Roe because of precedent. I wish somebody would ask him that.
The term "strict constructionist" is so vague it's hard to know what Giuliani means by it. I realize most conservative Court watchers do not consider Kennedy to be the same kind of conservative as the other four. That's why it would shed light on Giuliani's thinking if he would say whether or not he thought Kennedy was a "strict constructionist" -- and, more precisely, if he would appoint someone like Kennedy and call him a "strict constructionist".
Afterall, like Jan says, Kennedy certainly is more of one (whatever one is) than O'Connor was.
The great fear for social conservatives with Guiliani is that he will nominate someone like Kennedy to the Court to keep Roe in tact, while claiming his new nominee is a "strict contructionists". It's what most social conservatives feel he will do.
And it's also what many socially liberal Republicans -- including some commenters at republican web sites like confirmthem -- are hoping for, and it's why they are pushing Guiliani.
I doubt, unfortunately, that the Robert's Court will truly be the Robert's Court unless there is another justice appointed who is like Roberts himself and not like Kennedy.
But I still liked reading Jan's post on the subject of the Robert's court. I always learn a considerable amount from what she writes. It's always deeper and clearer and more encompassing than what I read other places.
Posted by: Joe | May 15, 2007 6:04:05 PM
While Roberts probably is writing the "race case" -- as you put it -- it may be the case that Alito voted with the liberals, or a few Justices are wobbly based on the particular facts that the opinion rests on. This opinion was really supposed to have been handed down on May 14th. We actually don't know whether Kennedy and Alito will write a concurrence.
Posted by: Jan is trying to influence Roberts | May 15, 2007 7:02:12 PM
it may be the case that Alito voted with the liberals
Care to make it interesting?
Posted by: Scott Lemieux | May 16, 2007 11:59:00 AM
I'd care to know why the opinion is taking so long if it's a slam-dunk.
Posted by: Not Scott Lemieux | May 16, 2007 12:23:52 PM
This good piece is a fine example of Jan Greenburg's careful and intelligent, non-inflammatory style that is very refreshing and helpful in the midst of a contrary world of rather mostly heated invective that usually gives off little to no light. Keep up the good work Jan!
Posted by: Russ Davis | May 17, 2007 12:47:27 AM
Jan's informative and crystal clear journalism is so refreshing. I hope she remains as the premier lawyer's journalist: objective, clear and concise.
For what it's worth, I agree there's a big contest of ideas going on in the court, but from my perspective it's simply between those who want to apply the law and those who want to create it.
We'll see what happens in the coming months...
Posted by: Timothy D. Mak | May 18, 2007 3:53:12 AM
You mention Gonzales v. Carhart, but I don't think that the opinion says what you'd like it to about Kennedy: to be brief, the opinion is almost, word-for-word, the same as his dissent in Stenberg v. Carhart. Together these two seem to indicate that Kennedy is assuming the mantle of the protector of Casey era-abortion rights, not that of its destroyer.
Posted by: Jimmy Buechele | May 18, 2007 3:45:35 PM
Well, I sure am getting curious how broad Chief Justice Roberts is going to be in the student race cases. And I'm beginning to worry I might have to wait until the last day of the Court's term to find out.
Also, I've been mulling over the prospects of a retirement at the end of the term, and my most likely scenario for Justice Stevens stepping down at the end of the term goes something like this: Stepping down now minimizes (doesn't eliminate but does minimize) the likelihood that a strong conservative will be confirmed to replace him.
This at first may seem to be wrong but on a closer look it may be correct.
The scenario Justice Stevens likely would most want to avoid retiring in is if a conservative Republican (Thompson or Romney -- and the nominee will be one of those two) wins the Presidency in 2008 and the Republicans also retake the senate. That's a much more likely scenario than most people currently realize.
If Justice Stevens is still on the Court going into the 2008 election, that fact alone will motivate millions of social conservatives (one issue voters, and that issue is getting conservative Justices on to the Court, and this will be the election that will finally bring the big pay off on Justices that social conservatives have been working so hard at for years) to go out and vote Republican.
So the play it safe scenario for Justice Stevens is to retire before then and have a weak President Bush and a Democratic senate decide on his replacement.
This gives up on the opportunity of having all democratic liberals deciding the replacement, but that's not a likely scenario anyway. At the same time, it avoids the other extreme of having a new, stronger conservative President (who ran and got elected on the promise of nominating conservatives to the Court) and a Republican senate deciding the replacement.
Posted by: Joe | May 31, 2007 5:51:07 PM
The trend of the Roberts Court may be enough to help mobilize the center and left, increasing their turn-out enough to out-number the million conservative voters envisioned by Joe (if all of those blue votes are counted). Conservatives are a minority in this country, and hopefully on the Court.
Posted by: Harry | Jun 25, 2007 9:42:26 PM
Harry is wrong. Conservatives are not a minority, at least as that term is used in the context of what the majority prefers when it comes to the federal judiciary. Bush made it crystal clear to voters (in both elections) that he planned to stock the federal courts with rule of law conservatives who would not legislate from the bench. Bush bemoaned "liberal activist" federal judges and that resonated with the public which, to a meaningfully large extent, had grown weary of edicts from liberals on the courts on such matters as affirmative action in government employment, gay marriage and like matters which ordinary folks understood as a hijack by the judiciary of matters entrusted to the democratic process. Proving my point are the recent polls showing a majority approve of the performance of the Roberts court as well as the previous polls showing strong support for a Senate vote in favor of Justice Alito's appointment, a nominee the public clearly understood to be a conservative.
Posted by: Cap Coleman | Jun 27, 2007 1:07:31 AM
Thanks for making the effort to get to the heart of the issue in your incisive, perceptive (albeit internet-only) piece on Nightline. The key issue is increased funding for run-down public schools, not busing based on skin color. You get it. So do I. So will others (eventually). I have faith.
Posted by: Timothy D. Mak | Jun 30, 2007 6:18:39 AM
Post a comment
