Eminent Domain

The Harvard Political Review has an excellent article summarizing Chief Justice John Roberts' first year on the Supreme Court. Writer Vivek Viswanathan begins the article by talking a bit about Judge John Roberts, the then-nominee to the Court. While Roberts had a long career as a private and government litigator, his judicial record was rather short. Many speculated about the kind of Supreme Court Justice that John Roberts would be. Even after his first year, it's still difficult to tell. Viswanathan makes this point (with a little help from a quotation)...

What Americans learn about Roberts will likely emerge in bits and pieces over a period of many years. Former Solicitor General Charles Fried testified before the Senate Judiciary Committee that if Roberts "tells of his judicial philosophy, it will only be ten or more years from now."

While Roberts' entire judicial philosophy is still unknown, we can learn a bit about him from his votes, opinions, and behavior during the last term.

Viswanathan quotes Professor Cass Sunstein's assessment of Roberts' DC Circuit record. Sunstein believed that while Roberts was definitely a conservative, his opinions had "none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead plays close attention to the legal material at hand." What does Prof. Sunstein think now? Well, the Harvard Political Review asked him...

Roberts, true to his word, has not articulated any judicial ideology or agenda since joining the Court. And yet, for those who hoped that he would stake out a moderate position on the Court, the signs from the first term have not been encouraging. "I'm surprised that he hasn't shown more moderation," Sunstein told the HPR in an interview. Sunstein explained that while Roberts has only served on the Court for a few months, "All early signs, thus far, are of a predictable ally of [Justice Antonin] Scalia and [Justice Clarence] Thomas." He also noted that Roberts "seems to be a fan of clear, simple rules, as Justice [Sandra Day] O'Connor certainly was not."

Well, no forecast is right 100% of the time.

Viswanathan also focuses on Chief Justice Roberts' desire to build a greater consensus on the Court. It may be working too...

Indeed, there have been a remarkable number of unanimous opinions thus far in his term, and surprisingly few concurring majority opinions, which can have the effect of muddling Supreme Court precedent.

It's difficult to say anything definitive based on this. One term of the Court does not provide much data to analyze. Prof. Sunstein is a bit skeptical of Roberts' consensus building plans...

But given the ideological differences among Court members, and Roberts's own conservative leanings, there is no guarantee that those efforts will continue to achieve results, especially when the Court addresses some of the more contentious constitutional issues in America today. "Roberts is apparently interested in achieving consensus, and he may move the Court some; but it would be surprising if he has a huge effect," Sunstein told the HPR. "There are nine independent minds on the Supreme Court."

It will be very interesting to see how the dynamics of the Roberts Court work after so many years of an unchanging Rehnquist Court.

Cross posted on MULS Federalist Society.