Eminent Domain

After Ted Kennedy and Gregory Stanford whined about the Court and its new members, I thought it would be good to post some praise for Chief Justice John Roberts. Writing in The American Lawyer, Slate's resident smarmy legal commentator Dahlia Lithwick has a lot of good things to say about the Chief. Take a look...

Let me confess that Roberts had me-an unrepentant old-school liberal-at hello. He is handsome and mild, and those two small children of his are adorable. He has proven to be both hilariously funny and self-deprecating on the bench. And he has none of the pretensions of his predecessor: no stripes, no snarling at oral advocates, and no Court security officers hunting down rumpled reporters who mistakenly believe that office casual can pass for courtroom attire. But what Roberts has done, far more cannily than Rehnquist, is to use the media to get across his judicial philosophy.

Lithwick then praises the Chief for changing the tone of the Court and helping the public see its members in a new light...

Not only has Roberts removed the gilded bars from his robe, but he's removed them from around himself. He has been known to take the subway to work. He brings his own lunch. A colleague of mine reported with glee that Roberts was at his own front door handing out candy last Halloween. He smiles at the attorneys being sworn in to the Supreme Court bar before oral argument. These are not inconsequential achievements. Roberts knew it was time to humanize the Court, but he has done so without in any way demeaning it.

Lithwick also repeats the praise given by Justice O'Connor, Professor Douglas Kmiec, and even People for the American Way (I bet it hurt for them to make those comments). While nice to hear, we've heard these compliments before from many sources. I want to focus on another comment in the piece...

In light of the cert grants for the next term, there is no doubt that the Roberts court is willing to take another look at some of O'Connor's legal architecture (notably, regarding affirmative action and partial birth abortion), and to take on new issues, including the Environmental Protection Agency's duty to regulate carbon dioxide emissions.

That one sentence is easy to gloss over in a glowing piece about Roberts, but I think it is an incredibly important and astute observation by Lithwick. The next term is the first full term with the new Court. Justice O'Connor spent about half of the last term on the Court while Justice Alito was being confirmed. By granting cert in affirmative action and partial birth abortion cases, certain members of the Court have made it clear that O'Connor's work is not sacred. Legal battles like those two are not finished. It is certainly possible that the PBA case will come out differently, and it is possible that the Court will take a slightly different view in the affirmative action case (although, the case itself is quite different than the previous AA ones).

This is one of the reasons that I doubt the "Roberts is a minimalist" line. Lithwick repeats it, Prof. Cass Sunstein popularized it, and it's made its way into the legal discourse. I think that Roberts has charmed these people. That combined with his relatively short appeals court record didn't give commentators much to work with for predictive analysis. He will go for the consensus decision when he can, crafting a strong majority if it's within reach. But he's not going to be manipulated by his colleagues on the Court. He has strong opinions about the law and will dissent forcefully if necessary (Ex. Georgia v Randolph). If he and others on the Court believe that O'Connor's vote resulted in an incorrect decision, I believe that the Court will take on these issues again, especially if it's a case where Justice Kennedy disagreed with O'Connor.