The Roberts Effect
Mar 20, 2006, Vol. 11, No. 25 • By TERRY EASTLAND, FOR THE EDITORS
JOHN ROBERTS HAS SAT IN the center seat of the Supreme Court a mere five months. Conventional wisdom holds that it takes four or five years for a new justice to hit his stride. Even so, Roberts's work stands out in a Washington whose daily manufacture, it seems, is another fight between an irresponsible Congress and a president with cratering job-approval numbers. If you want to see excellence in government, consider the brief tenure of our new chief justice.
Under Roberts the Court has decided 39 cases. Roberts himself has written three opinions. Each was unanimous, the most recent being last week's opinion upholding the access of military recruiters to college campuses (elsewhere in this issue). Each is well-written. Concision and clarity distinguish the opinions. Sentences do not wander about, nor fatten from authorial pomposity. Arguments are fairly addressed, distinctions cleanly drawn, decisions plainly stated. Nor has Roberts retired the dry humor on display during his hearings. The chief justice, and not his clerks, is clearly in charge of his own prose. Finally, and not a small point: His opinions are enormously persuasive.
Roberts delivered his first opinion on December 7 in Martin v. Franklin Capital Corp. At issue was the proper standard for awarding attorneys' fees when remanding a case from federal court to a state court. The case was thuddingly dull and thus the sort a new justice, even a new chief, customarily accepts as the first in which he writes for the Court. But Roberts made his opinion interesting. He cited an opinion by the late Chief Justice William Rehnquist, whom he succeeded and for whom he had clerked, and also one by the famous chief justice, John Marshall. Roberts introduced the latter's statement from U.S. v. Aaron Burr (1807) with a bit of drollery--"We have it on good authority"--the authority being, as a reader learns by the end, the great Marshall.
Roberts's second opinion came last month in Gonzales v. Uniao do Vegetal, the latter being a Christian sect from Brazil with about 130 congregants living in the United States. For communion, UDV uses a tea made from a hallucinogenic plant found only in the Amazon region. Said plant also happens to be prohibited under our Controlled Substances Act. When Customs officials seized a shipment of the plant, the group sued, arguing that this violated the Religious Freedom Restoration Act of 1993. In siding with UDV, Roberts adroitly dealt with the pertinent statutes and constitutional cases. Describing the government's argument as resting on "slippery-slope concerns that could be invoked in response to any RFRA claim for an exception," Roberts wrote that the argument "echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions."
Roberts's opinion in the military recruiting case deservedly rebuked the liberal law professoriate's arguments against the Solomon Amendment. That the entire Court, even the liberal justices, signed on to his opinion, has drawn notice. But Rumsfeld v. Forum for Academic and Institutional Rights also happens to be the ninth straight case in which there have been no dissents or concurrences. This harmonious streak will of course be broken. But the unanimity has held in the sorts of cases that usually divide the Court--involving religious liberty, abortion, the death penalty, and antitrust.
Roberts's new colleagues may be extending him a "honeymoon." But surely Roberts himself is an important part of the explanation. He came from a court--the D.C. Circuit--where the chief judge urged colleagues to make serious efforts to find a broadly acceptable resolution. That approach is what Roberts was used to and, given his personality, one that naturally suits him. But it is not that Roberts merely encourages agreement among the justices. The other day Justice Breyer told an Alabama audience that the justices discuss cases more under Roberts than they did under Rehnquist. Roberts is surely responsible for that, and it marks an important change.
Justices Stevens and Scalia have both complained over the years about the conferences held on the Fridays of weeks with oral arguments. It is then that the justices at least tentatively decide cases, and yet under Rehnquist the justices typically did little more than declare their votes. For Roberts to invite discussion means that Roberts himself has to come to the conference table fully prepared. That's not hard to imagine. But the other justices have to come prepared as well, or risk embarrassment.
Over time, the Roberts effect may produce not only larger majorities and more stable rulings but also a Court that, thanks to conferences that really are conferences, pays more attention to working out the relevant law and less to mere politics. The distinction between law and politics is, of course, precisely what Roberts (and Samuel Alito) insisted upon during their confirmation hearings, and it lies at the heart of judicial conservatism. The prospect of the continuing advancement of that philosophy is a happy one, and a reason to say hail to this particular chief.
-Terry Eastland, for the Editors